Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law. (b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and after the Closing, Buyer shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect of
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall will not, and shall will not permit the Company or any of its Subsidiaries Acquired Companies to, amend, repeal or modify any provision existing as of the date of this Agreement in the Company’s or any of its SubsidiariesAcquired Companies’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any the current and former officers and directors of any Acquired Company (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall each D&O Indemnified Person will continue to be entitled to such exculpation, indemnification and advancement of expenses in accordance with such provisions to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 7.01 and not in limitation thereof, from and for a period of six years after the Closing, Buyer shallwill, and shall will cause the Company and its Subsidiaries Acquired Companies (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the any Acquired Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification and; provided, further that neither Buyer nor any Acquired Company will be liable for any settlement effected without its express written consent (which shall not be unreasonably withheld, conditioned or delayed). If prior to the date that is six years after the Closing, a D&O Indemnified Person delivers to Buyer a written notice asserting a claim for indemnification under this Section 7.01(b), then any D&O Indemnifiable Claim asserted in such notice will continue until such D&O Indemnifiable Claim is waived in writing by such D&O Indemnified Person or such D&O Indemnifiable Claim is fully and finally resolved. For the purposes of this Section 7.01(b), “D&O Expenses” will include reasonable attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(c) At the Closing, Seller will, or will cause the Acquired Companies to (at Seller’s expense), obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of six years from the Closing Date from an insurance carrier with the same or better credit rating as Holdings’ and the Company’s current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable as Holdings’ and the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date. Buyer will not, or will cause the Acquired Companies to not, cancel or change such insurance policies in any respect.
(d) In the event that all or substantially all of the assets of any Acquired Company are sold, whether in one transaction or a series of transactions, then Buyer and the Acquired Company will, in each such case, ensure that the successors and assigns of the Acquired Company assume the obligations set forth in this Section 7.01. The provisions of this Section 7.01(d) will apply to all of the successors and assigns of the Acquired Companies.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Stanadyne Corp), Stock Purchase Agreement (Clarcor Inc.)
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer shall not, and shall not permit cause the Organizational Documents of the Company or any of and its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents Subsidiary to contain provisions relating to the exculpation, indemnification or advancement of expenses of any officers and directors, that are no less favorable to the officers and directors of the Company and its Subsidiary who were officers and directors prior to the Closing (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors than are presently set forth in Organizational Documents of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the LawSubsidiary.
(b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereofaddition, from and after the ClosingClosing through the sixth (6th) anniversary thereof, Buyer shall, and shall cause the Company and its Subsidiaries Subsidiary (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable LawLaw (but solely to the extent of the coverage actually provided under the Tail Policy), (i) indemnify and hold harmless (and release from any Liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries Subsidiary and arising out of acts or omissions occurring on or prior to the Closing (but solely to the extent of the coverage actually provided for under the Tail Policy) (a “D&O Indemnifiable Claim”), and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in respect ofcircumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor (but solely to the extent of the coverage actually provided for under the Tail Policy); provided, however, that the D&O Indemnified Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such D&O Indemnified Person is not entitled to indemnification. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied (but solely to the extent of the coverage actually provided for in the Company’s or its Subsidiary’s certificate of incorporation or bylaws). For the purposes of this Section 7.02(a), “D&O Expenses” means reasonable attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any D&O Indemnifiable Claim, but shall exclude losses, claims, damages, judgments or amounts paid in settlement (which items are, for the avoidance of doubt, included in the definition of D&O Costs, but solely to the extent of the coverage actually provided for in the Company’s or its Subsidiary’s certificate of incorporation or bylaws).
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after following the ClosingClosing Date, Buyer Purchaser shall not, and shall not permit ensure that the Company or any of its Subsidiaries todoes not, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors in any way that diminishes or adversely affects the exculpation, indemnification or advancement of expenses provided therein (unless required by applicable Law), it being the intent of the Parties that during such period the officers and directors of the Company who were officers and directors prior to the Closing (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent provided for under applicable Law and in the Company’s Organizational Documents as of immediately prior to the LawClosing.
(b) In addition to To the other rights extent provided for in this Section 7.03 the Company’s Organizational Documents and not in limitation thereoffurtherance of Section 5.13(a), from and after the Closing, Buyer shall, and Purchaser shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer Purchaser or the Company or any of its Subsidiaries), Company) the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, -41- NAI-1502820106v1 judgments or amounts paid in any settlement consented to by the Company (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, Action to the extent based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries and arising out of acts or omissions occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the Transactions) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the D&O Indemnified Person to whom D&O Expenses are to be advanced provides a written undertaking to repay such advances if it is ultimately determined that such D&O Indemnified Person is not entitled to indemnification. To the extent provided for in the Company’s Organizational Documents, any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 5.13(b), “D&O Expenses” means reasonable and documented attorneys’ fees and all other reasonable, documented and out-of-pocket costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any D&O Indemnifiable Claim, but shall exclude losses, claims, damages, judgments or amounts paid in settlement (which items are, for the avoidance of doubt, included in the definition of D&O Costs).
Appears in 1 contract
Samples: Equity Purchase Agreement
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing Date, each Buyer Party shall cause the Company to indemnify and hold harmless each present and former director and officer of the Company and its Subsidiaries (the “D&O Indemnified Persons”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or Liabilities of any nature whatsoever (“D&O Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to Closing, whether asserted or claimed prior to, at or after the Closing, Buyer to the fullest extent permitted under Legal Requirements; provided, however, that nothing in this Section 7.01(a) shall not, and shall not permit require the Company to indemnify any D&O Indemnified Person for any D&O Costs that the Company or any of its Subsidiaries towould not have been obligated to indemnify such D&O Indemnified Person for prior to Closing.
(b) For a period of six (6) years after the Closing Date, amend, repeal or modify each Buyer Party shall cause to be maintained in effect with respect to the D&O Indemnified Persons any provision in the Company’s or any of its Subsidiaries’ articles or certificate of incorporation or articles of incorporation, bylaws (or other equivalent governing documents organizational documents) relating to the exculpation, exculpation or indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) in effect on the date of this Agreement (unless required by LawLegal Requirements), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification exculpation and advancement of expenses to the full extent of the Lawindemnification.
(bc) If the Closing occurs, the Company shall purchase, and each of Buyer and Sellers shall pay one-half of the cost of, a directors’ and officers’ liability insurance “tail” or “runoff” insurance program (the “Tail Policy”) to be in effect until the end of the six-year period commencing as of the Closing Date (and for so long as any indemnification claim is being adjudicated) with respect to actions or omissions occurring prior to the Closing Date (such coverage to be on terms and conditions and for an amount no less favorable to the Company’s and its Subsidiaries’ directors and officers currently covered by such insurance than those of such policy in effect on the date of this Agreement), and each Buyer Party and the Company agrees not to terminate or modify in a manner adverse to the beneficiaries thereof the Tail Policy prior to the sixth anniversary of the Closing Date.
(d) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and event that after the ClosingClosing Date, Buyer shallor the Company, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Lawor their respective successors or assigns, (i) indemnify consolidates with or merges into any other Person and hold harmless shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and release from assets to any Liability to Person, then, and in each case, proper provision shall be made so that the successors and assigns of Buyer or the Company or any Company, as the case may be, honor the indemnification and other obligations of its Subsidiaries)such Persons, the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofunder this Section 7.01.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For Buyer shall cause the members of the Company Group to, for a period of six (6) years after the ClosingClosing Date, Buyer shall notindemnify and hold harmless, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement fullest extent permitted under applicable Requirements of expenses of any officers Law (and directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and after the Closing, Buyer shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) Group to, advance expenses as incurred to the fullest extent permitted by under applicable LawRequirements of Law and the organizational documents of each Company Group Member in respect of), each current or former officer, director, partner, member, manager or employee of each Company Group Member (ior their respective predecessors) indemnify from and hold harmless against any and all Losses incurred resulting from matters arising prior to Closing. Buyer agrees that at all times during such six (6) year period, Buyer shall not, and release from any Liability to Buyer or shall cause the members of the Company Group not to, amend the provisions of the organizational documents of the members of the Company Group relating to indemnification, exculpation and advancement of expenses in a manner that would adversely affect any such officer, director, partner, member, manager or employee. In lieu of the foregoing provisions of this Section 8.11, Buyer may, or may cause any Company Group Member to, obtain as of its Subsidiaries)the Closing Date and maintain “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the D&O Indemnified Persons against all D&O Expenses (as defined below)current or former officers, lossesdirectors, claimspartners, damagesmembers, judgments managers or amounts paid employees of the Company Group, in settlement (“D&O Costs”) in each case with respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or to claims arising out of or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring events which occurred on or prior to the Closing Date (including in respect ofconnection with the transactions contemplated by this Agreement).
(b) In the event that (i) a sale of Buyer or all or substantially all of its assets is consummated after the Closing or (ii) this Agreement is otherwise assigned by Buyer in accordance with Section 13.5, Buyer shall cause the applicable acquiror(s), purchaser(s) or assignee(s) to expressly assume the obligations of Buyer contained in this Section 8.11 and confirm such assumption in a writing addressed to Seller.
Appears in 1 contract
Samples: Asset Contribution and Equity Purchase Agreement (West Corp)
Director and Officer Liability and Indemnification. (a) For Until, and for a period of six (6) years after after, the ClosingClosing Date, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification and expense advance and reimbursement provisions contained in the Acquired Companies’ Organizational Documents limiting the personal liability of directors and officers for damages, shall not be amended, repealed or advancement otherwise modified in any manner that would make any of expenses such provisions less favorable to the directors or officers of any the Acquired Companies than pertain to such directors or officers and directors (eachon the date of this Agreement, a “D&O Indemnified Person”) (unless required by Law). Without limiting the foregoing, it being from the intent Closing Date and for a period of six (6) years after the parties that Closing Date, Parent and the Acquired Companies shall, (i) indemnify, defend and hold harmless the present and former officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpationAcquired Companies (collectively, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof“D&O Indemnified Parties”), from and after the Closing, Buyer shallagainst, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer pay or the Company or any of its Subsidiaries), reimburse the D&O Indemnified Persons against Parties for, all D&O Expenses (as defined below)losses, lossesobligations, expenses, claims, damagesdamages or liabilities (whether or not resulting from third-party claims and including interest, judgments penalties, out-of-pocket expenses and reasonable attorneys’ fees incurred in the investigation or amounts paid in settlement (“D&O Costs”) in respect defense of any threatened, pending of the same or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on in asserting any of their rights hereunder) resulting from or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts actions or omissions of such D&O Indemnified Parties occurring on or prior to the Closing Date (including the transactions contemplated by this Agreement) to the fullest extent permitted or required under (A) applicable Law or (B) the Acquired Companies’ Organizational Documents in effect on the date of this Agreement and subject to the terms of such Organizational Documents, including provisions relating to advancement of expenses incurred in the defense of any action or suit, and (ii) advance to any D&O Indemnified Parties expenses incurred in defending any action or suit with respect to such matters, in each case to the extent such D&O Indemnified Parties are entitled to indemnification or advancement of expenses under the Acquired Companies’ Organizational Documents in effect on the date of this Agreement and subject to the terms of such Organizational Documents; provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim.
(b) Parent and the Company hereby acknowledge that the D&O Indemnified Parties have or may, in the future, have certain rights to indemnification, advancement of expenses and/or insurance provided by other entities and/or organizations (collectively, the “Other Indemnitors” and, individually, an “Other Indemnitor”). Parent and the Company hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by Parent, the Company, the Representative or any Other Indemnitor, whether pursuant to any certificate of incorporation, by-laws, partnership agreement, operating agreement, indemnification agreement or other document or agreement and/or pursuant to this Section 8.3 (any of the foregoing is herein an “Indemnification Agreement”), Parent and the Company (i) shall at all times, be the indemnitors of first resort (i.e., their obligations to a D&O Indemnified Party shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by a D&O Indemnified Party shall be secondary), (ii) shall at all times be required to advance the full amount of expenses incurred by a D&O Indemnified Party and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement (to the extent legally permitted and as required by the terms of this Agreement or any Indemnification Agreement), without regard to any rights that a D&O Indemnified Party may have against the Other Indemnitors, and (iii) irrevocably waive, relinquish and release the Other Indemnitors from any and all claims (x) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (y) that the D&O Indemnified Party Indemnitee must seek expense advancement or reimbursement, or indemnification, from any Other Indemnitor before Parent and the Company must perform their expense advancement and reimbursement, and indemnification obligations, under this Agreement. Parent and the Company hereby further agree that no advancement, indemnification or other payment by the Other Indemnitors on behalf of a D&O Indemnified Party with respect to any claim for which a D&O Indemnified Party has sought indemnification from Parent or the Company shall affect the foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such D&O Indemnified Party against Parent or the Company, and Parent or the Company shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such D&O Indemnified Party to the extent such amounts would have otherwise been payable by Parent or the Company to a D&O Indemnified Party.
(c) If following the Closing, Parent or the Company, as the case may be, or any of their respective successors or assigns reorganizes or consolidates with or merges into any other Person and is not the resulting, continuing or surviving corporation or entity of such reorganization, consolidation or merger, or transfers all or substantially all of its properties and assets to any Person or Persons. then, and in each such case, proper provision will be made so that the successors and assigns of Parent or the Company assume all of the obligations of Parent or the Company, as the case may be, as set forth in this Section 8.3.
(d) Immediately prior to the Closing, Parent shall purchase, from an insurer chosen by the Company, a single payment, run-off policy of directors’ and officers’ liability insurance covering current and former officers and directors of any Acquired Company, the material terms of which, including coverage and amount, are no less favorable in any material respect to the D&O Indemnified Parties than the policy in effect as of the date hereof, such policy to become effective at the Closing and remain in effect for a period of six (6) years after the Closing.
(e) This Section 8.3 is intended for the benefit of, and to grant third party rights to, persons entitled to indemnification and the Other Indemnitors under this Section 8.3 and the benefits of the exculpation, indemnification and expense advance and reimbursement provisions contained in the Acquired Companies’ Organizational Documents, whether or not parties to this Agreement, and each of such persons shall be entitled to enforce the covenants contained herein.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall will not, and shall will not permit the Blocker, the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Blocker's, the Company’s 's or any of its Subsidiaries’ ' certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers current and former officers, directors and/or direct or indirect equityholders (each, a “an "D&O Indemnified Person”") (unless required by Law)law) in a manner that is detrimental to such D&O Indemnified Persons, it being the intent of the parties that the officers and directors of the Blocker, the Company and its Subsidiaries shall will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of provided by such governing documents immediately prior to the LawClosing.
(b) In addition to the other rights provided for in this Section 7.03 8.03 and not in limitation thereof, from and after the Closing, Buyer shallwill, and shall will cause the Blocker, the Company and its Subsidiaries (each, a “"D&O Indemnifying Party”") to, to the fullest extent permitted provided by applicable Lawthe governing documents of Blocker immediately prior to the Closing, the Company and its Subsidiaries, (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Blocker, the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“collectively, "D&O Costs”") in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Blocker, the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a "D&O Indemnifiable Claim"), and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 8.03(b), "D&O Expenses" will include attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in, any D&O Indemnifiable Claim, but will exclude Losses, claims, damages, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(c) At the Closing, Sellers will, or will cause the Blocker, the Company and its Subsidiaries to, at Sellers' expense, obtain, maintain and fully pay for irrevocable "tail" insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six years from the Closing Date from an insurance carrier with the same or better credit rating as the Blocker's, the Company's and its Subsidiaries' current insurance carrier with respect to directors' liability insurance in an amount and scope at least as favorable as the Blocker's, the Company's and its Subsidiaries' existing policies with respect to matters existing or occurring at or prior to the Closing Date. Buyer will not, or will cause the Blocker, the Company and its Subsidiaries to not, cancel or change such insurance policies in any respect.
(d) Buyer hereby acknowledges (on behalf of itself and its respective Subsidiaries) that the D&O Indemnified Persons may have certain rights to indemnification, advancement of expenses and/or insurance provided by current equityholders, members, or other Affiliates of the Sellers or their respective equityholders ("Indemnitee Affiliates") separate from the indemnification obligations of Buyer hereunder. The parties hereto hereby agree (i) that Buyer, the Blocker and the Company are the indemnitors of first resort (i.e., their obligations to the D&O Indemnified Persons are primary and any obligation of any Indemnitee Affiliate to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the D&O Indemnified Persons are secondary), and (ii) that Buyer, the Blocker and the Company will be required to advance the full amount of expenses incurred by the D&O Indemnified Persons and will be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted, without regard to any rights the D&O Indemnified Persons may have against any Indemnitee Affiliate.
(e) In the event that all or substantially all of the assets of the Blocker, the Company or any of its Subsidiaries are sold, whether in one transaction or a series of transactions, then Buyer, the Blocker, the Company and its Subsidiaries will, in each such case, use commercially reasonable best efforts to cause the successors and assigns of the Blocker, the Company and its Subsidiaries, as applicable, to assume the obligations set forth in this Section 8.03. The provisions of this Section 8.03(e) will apply to all of the successors and assigns of the Blocker, the Company and its Subsidiaries.
Appears in 1 contract
Samples: Equity Purchase Agreement (ClubCorp Holdings, Inc.)
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless required by Lawlaw), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Lawlaw and that no change, modification or amendment of such arrangements may be made that will affect any such Person’s right thereto without the prior written consent of that Person.
(b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and for a period of six (6) years after the Closing, Buyer shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Lawlaw, (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all Orders or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 7.03(b), “D&O Expenses” shall include attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but shall exclude Losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs); provided, however, that nothing in this Section 7.03 shall require the Company or any of its Subsidiaries to indemnify any D&O Indemnified Person for any D&O Costs that the Company or any Subsidiary would not have been contractually obligated to indemnify such Indemnified Person for as of the date hereof.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For Without limiting any additional rights that any Person may have under any other agreement, and except to the extent prohibited by, or as a period result or any change in, applicable law, from the Closing Date through the sixth (6th) anniversary of six years the Closing Date, Purchaser, the Company and its Subsidiaries will indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, supervisory director, employee, manager, managing member, member, partner (general or limited), fiduciary or agent of the Company or any of its Subsidiaries (each, an "Indemnified Person"), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys' fees and disbursements, incurred in connection with any Legal Proceeding, arising out of or pertaining to (i) the fact that the Indemnified Person is or was an officer, director, supervisory director, employee, manager, managing member, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Closing (including this Agreement, the Transaction and related actions), whether asserted or claimed prior to, at or after the Closing, Buyer shall to the fullest extent permitted under applicable Law, as provided in the Organizational Documents or any other Contract of the Company or any of its Subsidiaries, in each case, as in effect on the date of such activities or otherwise in effect on the date hereof substantially in accordance with their respective terms. In the event of any such Legal Proceeding, each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any Legal Proceeding to the extent provided in the Organizational Documents or any other Contract of the Company or any of its Subsidiaries, in each case, as in effect on the date of such activities or otherwise in effect on the date hereof.
(b) For at least six (6) years following the Closing Date, Purchaser will not, and shall will not permit the Company or any of its Subsidiaries to, amend, repeal or modify in any manner adverse to any Indemnified Person any provision in the Company’s or any of its Subsidiaries’ certificate such Person's certificates or articles of incorporation, bylaws articles of organization, certificate of limited partnership, operating agreement, bylaws, limited partnership agreement or other equivalent similar governing documents documents, as applicable, or in any agreement, relating to the exculpationexculpation or indemnification of, indemnification or advancement of expenses of to, any officers Indemnified Person as in effect immediately prior to the Closing, and directors (each, a “D&O Indemnified Person”) (unless required Purchaser will cause all such provisions to be observed by Law)the Company and its Subsidiaries, it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall any Indemnified Person will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full fullest extent of the permitted under applicable Law.
(bc) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and after At the Closing, Buyer shallthe Company will (at Purchaser's expense) obtain, maintain and shall fully pay for irrevocable "tail" insurance policies naming the Indemnified Persons as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to directors' liability insurance in an amount and scope at least as favorable as the Company's existing policies with respect to matters existing or occurring at or prior to the Closing Date (the "D&O Tail Policy"); provided that in the event that any claim is brought under the D&O Tail Policy prior to the sixth (6th) anniversary of the Closing Date, the D&O Tail Policy will be maintained until final disposition thereof. Purchaser will not, or will cause the Company and its Subsidiaries to not, cancel or change such insurance policies in any respect.
(eachd) In the event that Purchaser, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out or any of acts the respective successors or omissions occurring assigns of the foregoing (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each case, proper provisions shall be made so that such successor or purchaser, as the case may be, shall assume the obligations set forth in this Section 6.04.
(e) This Section 6.04 is intended to be for the benefit of each of the Indemnified Persons and may be enforced by any such Indemnified Person as if such Indemnified Person were a party to this Agreement.
(f) Purchaser acknowledges and agrees, on or prior their own behalf and on behalf of Purchaser Group, the agreements contained in this Section 6.04 and the indemnification contemplated by this Section 6.04 require performance after the Closing to the Closing (including maximum extent permitted by applicable Law and will survive in respect ofaccordance with Section 9.01(a).
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall will not, and shall will not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless required by Lawlaw), it being the intent of the parties that the current and former officers and directors of the Company and its Subsidiaries shall will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 6.05 and not in limitation thereof, from and after the Closing, Buyer shallwill, and shall will cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the Contemplated Transactions) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Agreement, “D&O Expenses” will include attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(c) At the Closing, Seller will (at Buyer’s expense) obtain and Buyer will maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable to the D&O Indemnified Persons as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date. Buyer will not, or will cause the Company to not, cancel or change such insurance policies in any respect.
(d) Without limiting the foregoing, Buyer agrees to ensure that (i) the D&O Indemnifying Parties shall be the indemnitors of first resort under each of the applicable indemnity obligations described herein with respect to the D&O Indemnified Persons (i.e., their obligations to the D&O Indemnified Persons shall be primary and any obligation of Seller (or any Affiliate thereof other than the Company) to provide advancement or indemnification for the same D&O Costs incurred by the D&O Indemnified Persons are secondary), and (ii) if Seller (or any Affiliate thereof other than the Company) pays or causes to be paid, for any reason, any amounts otherwise indemnifiable hereunder or under any other indemnification agreement (whether pursuant to contract or otherwise) with such D&O Indemnified Persons, then (x) Seller (or its Affiliates, as the case may be) shall be fully subrogated to all rights of such D&O Indemnified Persons with respect to such payment and (y) Buyer shall, or shall cause the Company to, fully indemnify, reimburse and hold harmless such Seller (or its Affiliate, as the case may be) for all such payments actually made by it. Buyer further agrees to cause the Company to unconditionally and irrevocably waive, relinquish and release, and to otherwise not exercise any rights that the Company may now have or hereafter acquire against Seller (or Affiliate thereof) or any D&O Indemnified Person that arise from or relate to the existence, performance or enforcement of any indemnification obligations of a D&O Indemnifying Party pursuant to this Agreement or otherwise, including, without limitation, any right of subrogation (whether pursuant to contract or common law), reimbursement, exoneration, contribution or indemnification, or to be held harmless, and any right to participate in any claim or remedy of a D&O Indemnified Person against Seller (or any Affiliate thereof) or another D&O Indemnified Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a an “D&O Indemnified Person”) (unless required by Lawlaw), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Lawlaw and that no change, modification or amendment of such arrangements may be made that will affect any such Person’s right thereto without the prior written consent of that Person.
(b) In addition to the other rights provided for in this Section 7.03 Article 7.02(d) and not in limitation thereof, from and after the Closing, Buyer shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Lawlaw, (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, Action based on or arising out of or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Article 7.02(b), “D&O Expenses” shall include attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but shall exclude losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
Appears in 1 contract
Samples: Stock Purchase Agreement (Pinnacle Foods Finance LLC)
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, the Buyer shall not, and the Buyer shall not permit ensure that the Company or any of and its Subsidiaries todo not, amend, repeal repeal, or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents Organizational Documents relating to the exculpation, indemnification indemnification, or advancement of expenses of any officers directors, officers, members, or managers in any way that diminishes or adversely affects the exculpation, indemnification, or advancement of expenses provided therein as of the Closing (unless required by applicable Law), it being the intent of the parties hereto that the directors, officers, members, or managers of the Company and directors its Subsidiaries who were directors, officers, members, or managers prior to the Closing (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification indemnification, and advancement of expenses to the full fullest extent provided for under the Company’s and its Subsidiaries’ Organizational Documents as of immediately prior to the LawClosing.
(b) In addition Notwithstanding anything to the other rights provided contrary herein or in any of the Company’s Organizational Documents, no D&O Indemnified Person shall be entitled (and the Seller hereby waives on behalf of each D&O Indemnified Person, and on behalf of each of the successors, heirs, representatives and assigns of any of the foregoing, any entitlement that any such Person may have) to any D&O Indemnifiable Claim to the extent such D&O Indemnifiable Claim constitutes, arises out of or relates to (a) any matter that is the subject of any claim by or in the right of the Seller or any of its equity holders or any of their respective Affiliates or (b) any matter for which any Buyer Indemnified Party is entitled to indemnification under this Agreement (collectively, the claims described in this Section 7.03 the foregoing clauses (a) and not in limitation thereof(b), from and after “Excluded D&O Claims”).
(c) At the Closing, Buyer the Seller shall, at its sole cost and expense, obtain, maintain, and fully pay for an irrevocable “tail” insurance policy naming the D&O Indemnified Persons as direct beneficiaries, with a claims period of at least six (6) years from the Closing Date, from an insurance carrier with the same or better credit rating as the Company and its Subsidiaries’ current insurance carrier with respect to directors’ and officers’ liability insurance and in an amount and scope at least as favorable as the Company’s and its Subsidiaries’ existing policy, with respect to matters existing or occurring at or prior to the Closing Date. The Buyer shall not and shall cause the Company and its Subsidiaries (eachnot to cancel or change in any manner adverse to any D&O Indemnified Party such insurance policy. In the event the Buyer, a “D&O Indemnifying Party”) tothe Company, to any of the fullest extent permitted by applicable LawCompany’s Subsidiaries, or any of their respective successors or assigns, (i) indemnify consolidates with or merges into any other Person and hold harmless shall not be the continuing or surviving corporation or entity in such consolidation or merger, or (ii) transfers all or substantially all of its properties and release from assets to any Liability to Buyer or Person, then, and in either such case, proper provision shall be made so that the successors and assigns of the Buyer, the Company or any of its the Company’s Subsidiaries), as the case may be, shall assume the obligations set forth in this Section 10.6. The provisions of this Section 10.6 shall survive the consummation of the transactions contemplated by this Agreement and are expressly intended to benefit each of the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofPersons.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the ClosingClosing Date, Buyer shall not, and shall not permit Blocker, the Company or any of its Subsidiaries to, to amend, repeal or modify any provision in Blocker’s, the Company’s or any of its Subsidiaries’ certificate or Subsidiaries articles of incorporation, incorporation or bylaws (or other equivalent governing documents organizational documents) relating to the exculpation, exculpation or indemnification or advancement of expenses of any officers and directors current or former officer or director or person exercising similar authority (each, a the “D&O Indemnified PersonPersons”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries D&O Indemnified Persons shall continue to be entitled to such exculpation and indemnification to the fullest extent of the law.
(b) During the period from the Closing until the six-year anniversary thereof, Buyer shall, and shall cause Blocker, the Company and each of its Subsidiaries to (i) indemnify, defend and hold harmless each D&O Indemnified Person against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative) (each, a “D&O Claim”), whenever asserted, arising out of, relating to or in connection with any action or omission relating to their position with Blocker, the Company or its Subsidiaries, as applicable, occurring or alleged to have occurred before or at the Closing (including any D&O Claim relating in whole or in part to this Agreement or the Transactions), to the fullest extent permitted under applicable Law and (ii) assume all obligations of Blocker, the Company and its Subsidiaries, as applicable, to the D&O Indemnified Persons in respect of limitation of liability, exculpation, indemnification and advancement of expenses as provided in (A) the respective organizational documents of each of Blocker, the Company and its Subsidiaries as in effect on the date hereof and (B) any indemnification agreements with a D&O Indemnified Person, which shall in each case survive the Closing and continue in full force and effect to the full extent of permitted by applicable Law. Without limiting the Law.
(b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereofforegoing, from and after the Closing, Buyer shallshall ensure that each of Blocker, and shall cause the Company and its Subsidiaries fulfills its obligations to the applicable D&O Indemnified Person pursuant to the terms of the respective organizational documents of each of Blocker, the Company and its Subsidiaries as in effect on the date hereof; provided, however, notwithstanding anything to the contrary, the sole recourse of any D&O Indemnified Person shall be the proceeds of the Tail Policy and as provided in this Section 8.02.
(eachc) At the Closing, a Buyer will, or will cause the Company to, obtain and maintain irrevocable “D&O Indemnifying Partytail” insurance policies (the “Tail Policy”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer or the Company or any of its Subsidiaries), naming the D&O Indemnified Persons against all D&O Expenses as direct beneficiaries with a claims period of six years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date. Buyer will not, and will cause the Company to not, cancel or change such insurance policies in any respect. All fees and expenses incurred in connection with obtaining the Tail Policy shall be borne by the Unitholders (as defined belowa Transaction Expense).
(d) If Buyer, lossesBlocker, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries arising out or any of acts their respective successors or omissions occurring on assigns (i) shall consolidate with or prior merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the Closing (including successors and assigns of Buyer, Blocker, the Company and its Subsidiaries shall assume all of the obligations set forth in respect this Section 8.02. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by, each D&O Indemnified Person and his or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have had by contract or otherwise.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the ClosingClosing Date, Buyer Purchaser shall not, and shall not permit the Company or any of its Subsidiaries to, to amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or Subsidiaries articles of incorporation, incorporation or bylaws (or other equivalent governing documents organizational documents) relating to the exculpation, exculpation or indemnification or advancement of expenses of any officers and directors current or former officer or director (each, a the “D&O Indemnified PersonPersons”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries D&O Indemnified Persons shall continue to be entitled to such exculpation, exculpation and indemnification and advancement of expenses to the full fullest extent of the Law.
(b) In addition From and after the Closing, Purchaser shall, and shall cause the Company, except in the case of Fraud, to (i) indemnify, defend and hold harmless each D&O Indemnified Person against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative) (each, a “D&O Claim”), whenever asserted, arising out of, relating to or in connection with any action or omission relating to their position with the Company or its Subsidiaries or Seller, as applicable, occurring or alleged to have occurred before or at the Closing (including any D&O Claim relating in whole or in part to this Agreement or the transactions contemplated hereby), to the other rights fullest extent permitted under applicable Law and (ii) assume all obligations of the Company and its Subsidiaries or Seller, as applicable, to the D&O Indemnified Persons in respect of limitation of liability, exculpation, indemnification and advancement of expenses as provided for in this Section 7.03 (A) the Charter and not the respective organizational documents of each of the Company’s Subsidiaries and Seller as in limitation thereofeffect on the date hereof and (B) any indemnification agreements with a D&O Indemnified Person, which shall in each case survive the Closing and continue in full force and effect to the extent permitted by applicable Law, provided that the scope of such indemnity, individually and in the aggregate, shall be no more favourable to each D&O Indemnified Person than the indemnification currently provided to such D&O Indemnified Person. Without limiting the foregoing, from and after the Closing, Buyer shallPurchaser shall ensure that the Company fulfills its obligations to the applicable D&O Indemnified Person pursuant to the terms of the Charter and the respective organizational documents of each of the Company’s Subsidiaries and Seller as in effect on the date hereof.
(c) At the Closing, and shall Purchaser will, or will cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify obtain and hold harmless (maintain and release from any Liability to Buyer or the Company or any of its Subsidiaries), fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments direct beneficiaries with a claims period of at least six years from the Closing Date from an insurance carrier with the same or amounts paid better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance in settlement (“D&O Costs”) in an amount and scope at least as favorable as the Company’s existing policies with respect of any threatened, pending to matters existing or completed claim, action occurring at or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating prior to the fact that Closing Date. Purchaser will not, or will cause the Company to not, cancel or change such Person is or was a director or officer of insurance policies in any respect.
(d) If Purchaser, the Company or any of its Subsidiaries arising out or any of acts their respective successors or omissions occurring on assigns (i) shall consolidate with or prior merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the Closing (including successors and assigns of Purchaser and the Company and its Subsidiaries shall assume all of the obligations set forth in respect this Section 8.02. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by, each D&O Indemnified Person and his or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have had by contract or otherwise.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the ClosingClosing Date, Buyer Purchaser shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in of the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing organizational documents relating to the exculpation, limitation of liability or indemnification or (including advancement of expenses expenses) of any current or former officers and directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and or directors of the Company and its Subsidiaries (the “D&O Indemnified Persons”). The parties agree that the D&O Indemnified Persons shall continue to be entitled to such exculpation, limitation of liability and indemnification to the fullest extent of the law.
(b) From and after the Closing, Purchaser shall, and shall cause the Company to, (i) indemnify, defend and hold harmless each D&O Indemnified Person against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative) (each, a “D&O Claim”), whenever asserted, arising out of, relating to or in connection with, any action or omission relating to such D&O Indemnified Person’s position with the Company occurring or alleged to have occurred prior to or at the Closing (including any D&O Claim relating in whole or in part to this Agreement or the transactions contemplated hereby), to the fullest extent not prohibited under Applicable Law and (ii) assume all obligations of the Company to the D&O Indemnified Persons in respect of limitation of liability, exculpation, indemnification and advancement of expenses to as provided in the full extent organizational documents of the Law.
(b) In addition to Company as in effect on the other rights provided for in this Section 7.03 and not in limitation thereofdate hereof. Without limiting the foregoing, from and after the Closing, Buyer shallPurchaser shall ensure that the Company fulfills its obligations to the D&O Indemnified Persons pursuant to the terms of the organizational documents as in effect on the date hereof.
(c) At or prior to the Closing, the Company will obtain at Purchaser’s expense an irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount, scope and premium mutually agreed by Purchaser and Stockholder. At or prior to the Closing Date, Purchaser shall purchase and maintain in effect for a period of six years thereafter, “run-off” coverage as provided by the Company’s fiduciary and employee benefit policies, in each case, covering those persons who are covered on the date of this Agreement by such policies and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under the Company’s existing policies (the policies contemplated by the two preceding sentences, collectively, the “Tail Policies”). Purchaser will not, and shall will cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) not to, to cancel or change the fullest extent permitted Tail Policies in any respect. All fees and expenses incurred in connection with obtaining the Tail Policies shall be borne by applicable Law, Purchaser.
(id) indemnify and hold harmless (and release from any Liability to Buyer If Purchaser or the Company or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its Subsidiaries)properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of Purchaser and the Company shall assume all of the obligations set forth in this Section 7.02. The provisions of this Section 7.02 are intended for the benefit of, and will be enforceable by, each D&O Indemnified Persons against all D&O Expenses (as defined below)Person and his or her heirs and representatives, lossesand are in addition to, claimsand not in substitution for, damages, judgments any other rights to indemnification or amounts paid in settlement (“D&O Costs”) in respect of contribution that any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is may have had by contract or was a director or officer of the Company or any of its Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofotherwise.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Universal Corp /Va/)
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer the Purchaser shall not, and shall not permit the any Acquired Company or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the such Acquired Company’s certificate of incorporation or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, exculpation or indemnification or advancement of expenses of any managers, directors and/or officers and directors (each, a “D&O Indemnified Person”) from the form of such provisions as of immediately prior to the Closing (unless required by Law)) for any period prior to the consummation of the Closing, it being the intent of the parties that the managers, directors and officers and directors of the Company and its Subsidiaries Acquired Companies shall continue to be entitled to such exculpation, exculpation and indemnification and advancement of expenses to the full fullest extent permitted by Law for any period prior to the consummation of the LawClosing.
(b) In addition to the other rights provided for in this Section 7.03 7.02, and not in limitation thereof, from and after the Closing, Buyer the Company shall, and the Purchaser shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) Acquired Companies to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability liability to Buyer the Purchaser or the Company or any of its SubsidiariesAcquired Companies), current and former managers, directors and officers of the Acquired Companies (each, a “D&O Indemnified Persons Indemnitee”) against all D&O Expenses (as defined below), losses, claims, damages, judgments in respect of any Losses or amounts paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or on, arising out of or relating to the fact that such Person is or was a manager, director or officer of the Company or any of its Subsidiaries Acquired Companies and arising out of acts or omissions occurring on at or prior to the Closing (including in respect ofa “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnitees all D&O Expenses
Appears in 1 contract
Samples: Stock Purchase Agreement (TELUS International (Cda) Inc.)
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, the Buyer Parties shall not, and shall not permit the Company or any of its Subsidiaries the Meritas Companies to, amend, repeal or modify any provision in the Company’s or any of its Subsidiariesthe Meritas Companies’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless and to the extent required by Law), it being the intent of the parties Parties that the officers and directors of the Company and its Subsidiaries Meritas Companies shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the LawLaw and that no change, modification or amendment of such arrangements may be made that will affect any such Person’s right thereto without the prior written consent of that Person.
(b) In addition to the other rights provided for in this Section 7.03 9.5 and not in limitation thereof, from and after the Closing, the Buyer Parties shall, and shall cause the Company and its Subsidiaries Meritas Companies (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability liability to the Buyer or the Company Parties or any of its Subsidiariesthe Meritas Companies), the D&O Indemnified Persons against all D&O Expenses (as defined below), ) and all losses, claims, damages, judgments or and amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries the Meritas Companies arising out of acts or omissions in such Person’s capacity as a director of officer occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately and finally determined by a court of competent jurisdiction that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully and finally satisfied. For the purposes of this Section 9.5(b), “D&O Expenses” shall include reasonable attorneys’ fees and all other reasonable and documented costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but shall exclude losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(c) On or before the Closing, OldCo shall obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better financial-strength rating from A.M. Best Company as the Meritas Companies’ current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable to any of the Meritas Companies’ directors and officers as any of the Meritas Companies’ existing policies with respect to matters existing or occurring at or prior to the Closing Date.
(d) In the event that the Buyer Parties or the Meritas Companies or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, and in each such case, the Buyer Parties shall cause proper provision to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 9.5.
(e) The provisions of this Section 9.5 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person referred to in Section 9.5(a), his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Transaction Agreement (Nord Anglia Education, Inc.)
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer Purchaser shall not, and shall not permit the any Acquired Company or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the such Acquired Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws bylaws, certificate of formation or other limited liability company agreement (or equivalent governing documents document) relating to the exculpation, exculpation or indemnification or advancement of expenses of any current or former managers, directors or officers and directors of each Acquired Company (eacheach such individual, a “D&O Indemnified PersonIndemnitee”) (unless in any respect that would adversely affect the rights of the D&O Indemnitees with respect to acts or omissions occurring on or prior to the Closing Date, in each case, except as required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the applicable Law.
(b) In addition to the other rights provided for in this Section 7.03 7.02, and not in limitation thereof, for a period of six (6) years from and after the Closing, Buyer Purchaser shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, cause each Acquired Company to: (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Company Purchaser or any of its Subsidiaries), the Acquired Company) each D&O Indemnified Persons Indemnitee against all D&O Expenses (as defined below), and all losses, claimsliabilities, damages, expenses, claims, judgments or amounts paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or on, arising out of or relating to the fact that such Person D&O Indemnitee is or was a manager, director or officer of the any Acquired Company or any of its Subsidiaries and arising out of acts or omissions occurring on at or prior to the Closing (each, a “D&O Indemnifiable Claim”); and (ii) advance to each D&O Indemnitee all D&O Expenses incurred by such D&O Indemnitee (including in respect ofcircumstances where the applicable Acquired Company has assumed the defense of such claim). Any D&O Indemnifiable Claim shall continue until such D&O Indemnifiable Claim is disposed
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall Parent will not, and shall will not permit the Company or any of its Subsidiaries the DQ Companies to, amend, repeal or modify any provision in the Company’s or any of its Subsidiariesthe DQ Companies’ certificate or articles of incorporation, bylaws or other equivalent governing documents Governing Documents relating to the exculpation, indemnification or advancement of expenses in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an officer, director or employee of any officers and directors of the DQ Companies (each, together with such Person’s successors, heirs, executors or administrators, a “D&O Indemnified Person”) (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall such Persons will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 6.5 and not in limitation thereof, from and after the Closing, Buyer shallParent will, and shall will cause the Company and its Subsidiaries DQ Companies (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Company Parent or any of its SubsidiariesDQ Company), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceedingAction, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the any DQ Company or any of its Subsidiaries and arising out of acts or omissions occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a “D&O Indemnifiable Claim”), and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all judgments, Orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 6.5, “D&O Expenses” will include attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude damages, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(c) Prior to or simultaneously with the Closing, Parent will, or will cause the Company to, obtain, maintain and fully pay (at Parent’s sole expense) for irrevocable “tail” insurance policies covering all claims made insurance policies of the DQ Companies that will cease coverage at the Closing as a result of the consummation of the Merger, in each case with a claims period of at least six years from the Closing Date (other than with respect to any cybersecurity “tail” insurance policies, which shall have a claims period of at least two years from the Closing Date) from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to such insurance in an amount and scope, including terms, conditions, levels of coverage and retention, at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date. Parent will not, or will cause the Company to not, cancel or change such insurance policies in any respect.
(d) In the event that all or substantially all of the stock or assets of any DQ Company are sold, whether in one transaction or a series of transactions, proper provisions shall be made to ensure that the successors and assigns of any DQ Company assume the obligations set forth in this Section 6.5. The provisions of this Section 6.5(d) will apply to all of the successors and assigns of any DQ Company.
(e) The obligations under this Section 6.5 will not be terminated or modified in such a manner as to affect adversely any D&O Indemnified Person to whom this Section 6.5 applies without the consent of such affected D&O Indemnified Person. The provisions of this Section 6.5 are intended for the benefit of, and will be enforceable by (as express third-party beneficiaries), each current and former officer, director or similar functionary of any DQ Company and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by Contract or otherwise.
(f) From the date of this Agreement until the Closing, the Company shall, and shall cause each DQ Company to, use commercially reasonable efforts to cooperate with reasonable requests of Parent relating to archiving inactive member data records.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 7.02(a) and not in limitation thereof, from and after the Closing, Buyer shall, and shall Parent will cause the Company and its Subsidiaries Surviving Corporation (each, a the “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (harmless, current and release from any Liability to Buyer or former officers and directors of the Company or any of its Subsidiaries)Subsidiaries (each, the a “D&O Indemnified Persons Indemnitee”) against all D&O Expenses (as defined below)Expenses, losses, claims, damages, judgments or amounts paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out from or relating to the fact that such Person is or was a director or officer of the Company or any of its the Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnitees all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all Orders in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 7.02(a), “D&O Expenses” will include attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(b) Parent agrees to maintain, for a period of six (6) years after the Closing Date, (i) all rights of the D&O Indemnitees to indemnification for D&O Indemnifiable Claims provided in the Company’s Organizational Documents or comparable Organizational Documents of any Company Subsidiary as in effect immediately prior to the Closing and (ii) any indemnification agreements of the Company or any Company Subsidiary with respect to any D&O Indemnitee in relation to D&O Indemnifiable Claims. Parent shall ensure that such rights are not amended or otherwise modified in any manner that would adversely affect the rights of any D&O Indemnitee, unless such modification is required by Law or approved in writing by such D&O Indemnitee.
(c) At the Closing, Parent will cause the Company to obtain and maintain irrevocable “tail” insurance policies (the “D&O Tail Policies”) naming the D&O Indemnitees as direct beneficiaries with a claims period of at least six years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date. The Company will bear 100% of the fees and expenses of purchasing and maintaining the D&O Tail Policies. Parent will not, and will cause the Surviving Corporation not to, cancel or change such insurance policies in any respect.
(d) In the event that all or substantially all of the assets of the Surviving Corporation are sold, whether in one transaction or a series of transactions, then Parent and the Surviving Corporation will, in each such case, ensure that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.02. The provisions of this Section 7.02(d) will apply to all of the successors and assigns of the Surviving Corporation.
(e) The obligations of Parent, the Surviving Corporation and their Subsidiaries under this Section 7.02 shall not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 7.02 applies without the consent of such affected Person.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the ClosingClosing Date, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents relating to the exculpation, indemnification and expense advance and reimbursement provisions contained in the Acquired Companies’ Organizational Documents limiting the personal liability of directors and officers for damages, shall not be amended, repealed or advancement otherwise modified in any manner that would make any of expenses of any such provisions less favorable to the directors or officers and directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that Acquired Companies than pertain to such directors or officers on the date of this Agreement. Without limiting the foregoing, from the Closing Date and for a period of six (6) years after the Closing Date, Parent and the Acquired Companies shall (i) indemnify, defend and hold harmless the present and former officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpationAcquired Companies (collectively, indemnification and advancement of expenses to the full extent of the Law.
(b“D&O Indemnified Parties”) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and after the Closing, Buyer shallagainst, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer pay or the Company or any of its Subsidiaries), reimburse the D&O Indemnified Persons against Parties for, all D&O Expenses (as defined below)losses, lossesobligations, expenses, claims, damagesdamages or liabilities (whether or not resulting from third party claims and including interest, judgments penalties, out-of-pocket expenses and attorneys’ fees incurred in the investigation or amounts paid in settlement (“D&O Costs”) in respect defense of any threatenedof the same or in asserting any of their rights hereunder) resulting from, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is their services as directors, officers or was a director or officer employees of the Company Acquired Companies, whether asserted or any of its Subsidiaries arising out of acts claimed at or omissions after or occurring on or prior to the Closing Date (including the transactions contemplated by this Agreement) to the fullest extent permitted or required under (A) applicable Law or (B) the Acquired Companies’ Organizational Documents, including provisions relating to advancement of expenses incurred in the defense of any action or suit, and (ii) advance to any D&O Indemnified Parties expenses incurred in defending any action or suit with respect to such matters, in each case to the extent such D&O Indemnified Parties are entitled to indemnification or advancement of expenses under the Acquired Companies’ Organizational Documents in effect on the date of this Agreement and subject to the terms of such Organizational Documents; provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim.
(b) Parent and the Acquired Companies hereby acknowledge that the D&O Indemnified Parties have or may, in the future, have certain rights to indemnification, advancement of expenses and/or insurance provided by other entities and/or organizations (collectively, the “Other Indemnitors” and, individually, an “Other Indemnitor”). Parent and the Acquired Companies hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by Parent, the Acquired Companies, the Representative or any Other Indemnitor, whether pursuant to any certificate of incorporation, by-laws, partnership agreement, operating agreement, indemnification agreement or other document or agreement and/or pursuant to this Section 8.3 (any of the foregoing is herein an “Indemnification Agreement”), Parent and the Acquired Companies (i) shall at all times, be the indemnitor of first resort (i.e., its obligations to a D&O Indemnified Party shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by a D&O Indemnified Party shall be secondary), (ii) shall at all times be required to advance the full amount of expenses incurred by a D&O Indemnified Party and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement (to the extent legally permitted and as required by the terms of this Agreement or any Indemnification Agreement), without regard to any rights that a D&O Indemnified Party may have against the Other Indemnitors, and (iii) irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims (A) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (B) that the D&O Indemnified Party must seek expense advancement or reimbursement, or indemnification, from any Other Indemnitor before Parent and the Acquired Companies must perform their expense advancement and reimbursement, and indemnification obligations, under this Agreement. Parent and the Acquired Companies hereby further agree that no advancement, indemnification or other payment by the Other Indemnitors on behalf of a D&O Indemnified Party with respect to any claim for which a D&O Indemnified Party has sought indemnification from Parent or the Acquired Companies shall affect the foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such D&O Indemnified Party against Parent or the Company, and Parent or the Acquired Companies shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such D&O Indemnified Party to the extent such amounts would have otherwise been payable by Parent or the Acquired Companies to a D&O Indemnified Party.
(c) If following the Closing, Parent, the Surviving Blockers, the Surviving Company, as the case may be, or any of their respective successors or assigns (i) reorganizes or consolidates with or merges into any other Person and is not the resulting, continuing or Surviving Company or entity of such reorganization, consolidation or merger or (ii) liquidates, dissolves or transfers all or substantially all of its properties and assets to any Person or Persons, then, and in such case, proper provision will be made so that the successors and assigns of Parent, the Surviving Blocker or the Surviving Company assume all of the obligations of Parent, the Surviving Blocker or the Surviving Company, as the case may be, as set forth in this Section 8.3.
(d) Immediately prior to the Closing, Parent shall purchase, from an insurer chosen by the Company, a single payment, run-off policy of directors’ and officers’ liability insurance covering current and former officers and directors of any Acquired Company, the material terms of which, including coverage and amount, are no less favorable in any material respect to the D&O Indemnified Parties than the policy in effect as of the date hereof, such policy to become effective at the Closing and remain in effect for a period of six (6) years after the Closing.
(e) Parent shall, or shall cause the Acquired Companies to, pay all expenses, including reasonable attorneys’ fees, which may be incurred by any D&O Indemnified Party in enforcing the indemnity or other obligations in this Section 8.3.
(f) This Section 8.3 is intended for the benefit of, and to grant third party rights to, the D&O Indemnified Parties and the Other Indemnitors under this Section 8.3 and the benefits of the exculpation, indemnification and expense advance and reimbursement provisions contained in the Acquired Companies’ Organizational Documents, whether or not parties to this Agreement, and each of such Persons shall be entitled to enforce the covenants contained herein.
Appears in 1 contract
Samples: Merger Agreement (Brunswick Corp)
Director and Officer Liability and Indemnification. (a) For a period All rights to indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the Closing (and rights to advancement of six years after expenses) existing as of the Closing, Buyer shall not, and shall not permit the Company date hereof in favor of any Person appointed by Seller or any of its Subsidiaries toAffiliates, amend, repeal or modify any provision in the Company’s otherwise employed by Seller or any of its Subsidiaries’ certificate Affiliates, who is, or articles of incorporation, bylaws or other equivalent governing documents relating has been at any time prior to the exculpationdate of this Agreement, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 and not in limitation thereof, from and after the Closing, Buyer shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer or the Company or any of its Subsidiaries), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries (each, a “D&O Indemnified Party”) as provided in the Company Organizational Documents or any director and officer insurance policy covering the D&O Indemnified Parties that is in effect as of the date hereof shall, following the Closing: (i) continue in full force and effect in accordance with their terms with respect to any claims against any such D&O Indemnified Party arising out of such acts or omissions occurring on and for a period of six years following the date of this Agreement, and (ii) not be amended, repealed or prior otherwise modified in any manner that would adversely affect any right thereunder of any such D&O Indemnified Party. From and after the Closing, Purchaser shall cause the Company and its Subsidiaries, and the Company shall cause its Subsidiaries, to comply with and honor all obligations under this Section 6.07.
(b) In the Closing event that, after the Closing, (including i) the Company or any of its successors or assigns, (x) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (y) transfers or conveys all or a substantial portion of its properties and other assets to any Person; or (ii) Purchaser or any of its successors or assigns dissolves the Company, then, and in respect ofeach such case, each of Purchaser and the Company shall cause proper provision to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 6.07.
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Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer shall Purchaser will not, and shall will not permit the Company or any of its Subsidiaries to, to amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or other equivalent governing documents Governing Documents relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a an “D&O Indemnified Person”) (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties Parties that the officers and directors of the Company and its Subsidiaries shall will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the Law.
(b) In addition to the other rights provided for in this Section 7.03 7.1 and not in limitation thereof, from and after the Closing, Buyer shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) towill, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability liability to Buyer Purchaser or the Company or any of its SubsidiariesCompany), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed claim, action or proceeding, whether criminal, civil, administrative or investigative, based on or arising out of or relating to the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries and arising out of acts or omissions occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the transactions contemplated hereunder) (a “D&O Indemnifiable Claim”), and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 7.1(b), “D&O Expenses” will include reasonable attorneys’ fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude damages, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs). Notwithstanding anything herein to the contrary, nothing in this Section 7.1 will limit any Party’s liabilities under this Agreement, any Company Document or any other agreement, document, instrument or certificate contemplated by this Agreement, including for Fraud.
(c) Simultaneously with the Closing, Purchaser will, or will cause the Company to, obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date (the “D&O Tail Policy”). Purchaser will not, or will cause the Company to not, cancel or change such insurance policies in any respect. Purchaser on the one hand, and Sellers on the other hand, shall each bear one-half of the cost and expenses relating to the D&O Tail Policy.
(d) In the event that all or substantially all of the equity interest or Assets of the Company are sold, whether in one transaction or a series of transactions, then Purchaser will, and will cause the Company to, in each such case, ensure that the successors and assigns of the Company assume the obligations set forth in this Section 7.1. The provisions of this Section 7.1(d) will apply to all of the successors and assigns of the Company.
(e) The obligations under this Section 7.1 will not be terminated or modified in such a manner as to affect adversely any D&O Indemnified Person to whom this Section 7.1 applies without the consent of such affected D&O Indemnified Person. The provisions of this Section 7.1 are intended for the benefit of, and will be enforceable by (as express third-party beneficiaries), each D&O Indemnified Person and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by Contract or otherwise.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer shall Parent will not, and shall will not permit the Company Surviving Corporation or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s 's or any of its Subsidiaries’ ' certificate of incorporation or articles of incorporation, bylaws (or other equivalent governing documents document) or any agreement relating to the exculpation, exculpation or indemnification or advancement of expenses of any officers and and/or directors (each, a “D&O Indemnified Person”) (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall will continue to be entitled to such exculpation, exculpation and indemnification and advancement of expenses to the full fullest extent of the permitted by applicable Law.
(b) In addition to the other rights provided for in this Section 7.03 7.02(b) and not in limitation thereof, from and after the Closing, Buyer shall, the Surviving Corporation will and shall Parent will cause the Company Surviving Corporation and its the Subsidiaries (each, a “"D&O Indemnifying Party”") to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless (and release from any Liability to Buyer Parent or the Surviving Corporation or any of the Subsidiaries), current and former officers and directors of the Company or any of its Subsidiaries)Subsidiaries (each, the a "D&O Indemnified Persons Indemnitee") against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (“collectively, "D&O Costs”") in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out from or relating to the fact that such Person is or was a director or officer of the Company or any of its the Subsidiaries arising out of acts or omissions occurring on or prior to the Closing (including in respect ofof acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a "D&O Indemnifiable Claim") and (ii) advance to such D&O Indemnitees all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all Orders in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 7.02(b), "D&O Expenses" will include attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude losses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
(c) At the Closing, Parent will cause the Company to obtain and maintain irrevocable "tail" insurance policies (the "D&O Tail Policies") naming the D&O Indemnitees as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to directors' liability insurance in an amount and scope at least as favorable as the Company's existing policies with respect to matters existing or occurring at or prior to the Closing Date. Parent will not, and will cause the Surviving Corporation not to, cancel or change such insurance policies in any respect.
(d) In the event that all or substantially all of the assets of the Surviving Corporation are sold, whether in one transaction or a series of transactions, then Parent and the Surviving Corporation will, in each such case, ensure that proper provisions are made such that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.02. The provisions of this Section 7.02(d) will apply to all of the successors and assigns of the Surviving Corporation.
(e) The obligations of Parent, the Surviving Corporation and their Subsidiaries under this Section 7.02 will not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 7.02 applies without the consent of such affected Person.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer the Purchaser shall not, and shall not permit the any Acquired Company or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the such Acquired Company’s or any of its Subsidiaries’ certificate or articles of incorporation, bylaws bylaws, certificate of formation or other limited liability company agreement (or equivalent governing documents document) relating to the exculpation, exculpation or indemnification or advancement of expenses of any current or former managers, directors and/or officers and directors of each Acquired Company (eacheach such individual, a “D&O Indemnified PersonIndemnitee”) from the form of such provisions as of immediately prior to the filing of the Certificate of Merger (unless required by Law), it being the intent of the parties hereto that the officers and directors of the Company and its Subsidiaries D&O Indemnitees shall continue to be entitled to such exculpation, exculpation and indemnification and advancement of expenses to the full fullest extent of the permitted by Law.
(b) In addition to the other rights provided for in this Section 7.03 7.02, and not in limitation thereof, from and after the Closing, Buyer the Purchaser shall, and shall cause the Company and its Subsidiaries (each, a “D&O Indemnifying Party”) to, to the fullest extent permitted by applicable Law, cause each Acquired Company to: (i) indemnify and hold harmless (and release from any Liability liability to Buyer or the Company Purchaser or any of its Subsidiaries), the Acquired Company) each D&O Indemnified Persons Indemnitee against all D&O Expenses (as defined below), and all losses, claimsliabilities, damages, expenses, claims, judgments or amounts paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or on, arising out of or relating to the fact that such Person D&O Indemnitee is or was a manager, director or officer of the any Acquired Company or any of its Subsidiaries and arising out of acts or omissions occurring on at or prior to the Closing (a “D&O Indemnifiable Claim”); provided, however, that D&O Indemnifiable Claims shall not include any claim that is finally adjudicated in a manner that determines that such D&O Indemnitee is not entitled to such indemnification under applicable Law or any of the Acquired Companies’ certificates of incorporation, bylaws, certificates of formation or limited liability company agreements (or equivalent governing documents); and (ii) advance to each D&O Indemnitee all D&O Expenses incurred by such D&O Indemnitee (including in respect ofcircumstances where the applicable Acquired Company has assumed the defense of such claim); provided, however, that the D&O Indemnitee to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such D&O Indemnitee is not entitled to such indemnification under applicable Law or any of the Acquired Companies’ certificate of incorporation, bylaws, certificate of formation or limited liability company agreement (or equivalent governing documents). Any D&O Indemnifiable Claim shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For purposes of this Section 7.02(b), “D&O Expenses” means attorneys’ fees and all other reasonable costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any D&O Indemnifiable Claim, but shall exclude losses, liabilities, damages, expenses, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
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Samples: Merger Agreement (Ducommun Inc /De/)
