Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing Date, Buyer shall cause the Company not to amend, repeal or otherwise modify any provision in the Company’s Limited Liability Company Agreement, as amended, relating to the exculpation or indemnification (or limitation on liability) of any officers and/or the managing member of the Company. Solely with respect to this Section 7.20, no Indemnified Person shall have any recourse against the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses under the Seller Insurance Policies. (b) If Buyer, the Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each case, the successors and assigns of such Persons, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20. (c) This Section 7.20 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. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person. (d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing DateClosing, Buyer shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or modify any provision in the LLC Agreement or any of its Subsidiaries’ certificate or articles of incorporation, bylaws or limited liability company agreements (or equivalent organizational documents) in a manner adverse to the exculpation, indemnification or advancement of expenses of any managers, officers and directors (unless required by law), it being the intent of the parties that the managers, 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; provided, however, that the foregoing shall not restrict the Buyer from liquidating, consolidating, merging or transferring all or substantially all of the assets of the Company or any of its Subsidiaries or engaging in any similar transaction, provided that in each such case, all such obligations set forth herein shall be assumed by a direct or indirect Subsidiary of the Buyer. The Company and its Subsidiaries shall, and Buyer shall cause the Company not to amendand its Subsidiaries to, repeal or otherwise modify any provision maintain in effect for six years after the Company’s Limited Liability Closing the current policy of managers’, directors’ and officers’ liability insurance and the current policy of fiduciaries’ liability insurance maintained by the Company Agreement, as amended, relating to the exculpation or indemnification (or limitation on liability) of any officers and/or the managing member of the Company. Solely and its Subsidiaries with respect to this Section 7.20matters occurring prior to the Closing; provided, no Indemnified Person shall have any recourse against that Buyer may substitute therefor policies of at least the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts same coverage containing terms and conditions that are not less advantageous than the existing policies (including with respect to first seek recovery for such Losses under the Seller Insurance Policiesperiod covered).
(b) If Buyer, the Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each case, the successors and assigns of such Persons, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20.
(c) This Section 7.20 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. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
Samples: Unit Purchase Agreement (Alliance Laundry Systems LLC)
Director and Officer Liability and Indemnification. (a) The Buyer agrees that all rights to indemnificationshall not, advancement of expenses and exculpation by shall not permit the Company now existing in favor of each Person who has been at or any time prior to the Closing an officer or managing member of the Company (eachSubsidiary to, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing Date, Buyer shall cause the Company not to amend, repeal or otherwise modify any provision in the Company’s Limited Liability Company Agreement, as amended, or any Subsidiary’s certificate of formation or limited liability company operating agreement relating to the exculpation exculpation, indemnification, reimbursement or indemnification (or limitation on liability) advance of any expenses of former officers and/or the managing member and managers of the Company. Solely Company and the Subsidiaries as in effect immediately prior to the Closing (but for the avoidance of doubt, not with respect to this Section 7.20members that are not such officers or managers), no Indemnified Person shall have any recourse against it being the intent of the parties that the officers and managers of the Company for any Losses unless and the Subsidiaries prior to the Closing shall continue to be entitled to such Indemnified Person has used commercially reasonable efforts exculpation and indemnification to first seek recovery for such Losses the fullest extent permitted under the Seller Insurance Policiesapplicable law.
(b) If BuyerNotwithstanding anything contained in this Agreement to the contrary, this Section 7.15 shall survive the Company consummation of the Closing indefinitely. In the event that the Buyer or any of its Affiliates or any of their respective successors or assigns (ia) consolidates with or merges into any other Person Person, or (iib) transfers all or substantially all of its properties or assets to any Person, then, and in each case, the successors and assigns of such Personsthe Buyer or its Affiliates, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.207.15. For the avoidance of doubt, no rights under this Section 7.15 shall in any way limit the indemnification obligations of the Sellers pursuant to Article X hereof or supersede the release contained in Section 7.13.
(c) This Section 7.20 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. The obligations of the Buyer under this Section 7.20 7.15 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 7.15 applies without the consent of such Indemnified affected Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
Samples: Securities Purchase and Sale Agreement (Corinthian Colleges Inc)
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six (6) years after the Closing DateEffective Time, Buyer Parent shall cause the Surviving Company not and each Subsidiary to amend, repeal or otherwise modify any provision include in the Company’s Limited Liability Company Agreement, as amended, their respective governing documents provisions relating to the exculpation or indemnification (of former officers and directors consistent in all material respects with those currently set forth in Adjoined’s and such Subsidiary’s charter or limitation on liability) of any officers and/or bylaws for the managing member benefit of the Company. Solely with respect officers and directors of Adjoined and such Subsidiary prior to this Section 7.20, no Indemnified Person shall have any recourse against the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses under the Seller Insurance PoliciesEffective Time.
(b) If BuyerAfter the Effective Time, Parent and the Surviving Company shall jointly and severally indemnify, defend and hold harmless each of the directors and officers of Adjoined and each Subsidiary prior to the Effective Time (the “Indemnified Management”) against all Damages arising out of or any in connection with their service as officers and directors of their respective successors Adjoined or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets a Subsidiary prior to any Person, thenthe Effective Time, in each casecase to the fullest extent permitted under applicable law or the charter or bylaws of Adjoined and such Subsidiary in effect as of the date of this Agreement (to the extent consistent with applicable law), and Parent and the successors and assigns Surviving Company shall, to the fullest extent permitted by applicable law, promptly reimburse the Indemnified Management for all expenses incurred in connection therewith (subject to an undertaking from the applicable member of Indemnified Management to repay to Parent such Persons, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20reimbursed expenses if it is ultimately determined that such member is not entitled to indemnification).
(c) This Section 7.20 7.5 shall survive the consummation of the Merger, is intended to be for the benefit of each of the Indemnified Persons Management and may their respective heirs and personal representatives, and shall be enforced by any such Indemnified Person as if such Indemnified Person were a party to this Agreement. The obligations binding on all successors and assigns of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 Parent and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XIISurviving Company.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights Following the Closing Date, Parent shall cause the Surviving Company to indemnificationinclude and maintain in effect in their organizational and governing documents for a period of six (6) years after the Closing Date, provisions regarding exculpation, indemnification and advancement of expenses of former officers, directors, managers and exculpation by the Company now existing in favor of agents which are, with respect to each Person who has been at any time prior such entity, no less advantageous to the Closing an officer or managing member intended beneficiaries than the corresponding provisions contained in such documents as of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive it being the intent of the Parties that the officers, directors, managers and agents of the Company prior to the Closing Date and shall continue in full force to be entitled to such exculpation and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing Date, Buyer shall cause the Company not to amend, repeal or otherwise modify any provision in the Company’s Limited Liability Company Agreement, as amended, relating indemnification to the exculpation or indemnification (or limitation on liability) of any officers and/or the managing member of the Company. Solely with respect to this Section 7.20, no Indemnified Person shall have any recourse against the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses fullest extent permitted under the Seller Insurance Policiesapplicable Law.
(b) If BuyerThe obligations of Parent under this Section 5.10 shall not be terminated or modified in such a manner as to adversely affect any officers, directors, managers, managing members or agents to whom this Section 5.10 applies without the consent of such affected director, officers, manager, managing member or agent (it being expressly agreed that the directors, officers, managers, managing members and agents to whom this Section 5.10 relates shall be third party beneficiaries of this Section 5.10, each of whom may enforce the provisions of this Section 5.10).
(c) In the event that Parent, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and 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 or and assets to any Person, then, and in each either such case, proper provision shall be made so that the successors and assigns of such PersonsParent or the Surviving Company, as the case may be, shall expressly assume and be bound by all of the obligations set forth in this Section 7.205.10.
(c) This Section 7.20 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. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
Samples: Merger Agreement (Envestnet, Inc.)
Director and Officer Liability and Indemnification. (a) Buyer agrees that 6.1 The personal liability of the directors and officers of the Corporation is hereby eliminated to the fullest extent permitted by the DGCL, and no director or officer of the Corporation shall be liable to the Corporation or its shareholders for damages for breach of any duty owed to the Corporation or its shareholders.
6.2 The Corporation shall indemnify any and all persons whom it shall have power to indemnify pursuant to the DGCL against any and all expenses, judgments, fines, amounts paid in settlement, and any other liabilities to the fullest extent permitted by such law and may, in the discretion of the Board of Directors, purchase and maintain insurance, at its expense, to protect itself and such persons against any such expense, judgment, fine, amount paid in settlement, or other liability asserted against and incurred by such persons, whether or not the Corporation would have the power to so indemnify such persons under the General Corporation Law of the State of Delaware. The indemnification provided for herein shall not be deemed to limit the right of the Corporation to indemnify any other person or any such expenses to the full extent permitted by law nor shall it be deemed exclusive of any other rights to indemnificationwhich any person seeking indemnification from the Corporation may be entitled under any by-law, advancement agreement, vote of expenses stockholders or disinterested directors or otherwise, both as to action in their official capacities and exculpation by the Company now existing as to action in favor of each Person another capacity while holding such offices, and shall continue as to a person who has been at any time prior ceased to be a director, officer, employee or agent and shall inure to the Closing an officer or managing member benefit of the Company (eachheirs, an “Indemnified Person”), as provided in the organizational documents executors and administrators of the Company, in each case as in such a person.
6.3 No amendment to or repeal of this Article Sixth shall apply to or have any effect on the date liability or alleged liability of any director or officer of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing Date, Buyer shall cause the Company not to amend, repeal Corporation for or otherwise modify any provision in the Company’s Limited Liability Company Agreement, as amended, relating to the exculpation or indemnification (or limitation on liability) of any officers and/or the managing member of the Company. Solely with respect to this Section 7.20any acts or omissions of such director or officer occurring prior to such amendment or repeal, no Indemnified Person shall have any recourse against the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses under the Seller Insurance Policies.
(b) If Buyer, the Company or any indemnification right of their respective successors any person arising from any matter occurring prior to such amendment or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each case, the successors and assigns of such Persons, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20repeal.
(c) This Section 7.20 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. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
Samples: Merger Agreement (Sl Industries Inc)
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing Date, Buyer the Purchaser shall cause not, and shall not permit the Company not to or its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s Limited Liability Company Agreementor its Subsidiaries’ certificate of formation, as amendedcertification of incorporation, articles of incorporation, operating agreement, bylaws, or equivalent governing documents relating to the exculpation or indemnification (or limitation on liabilityincluding fee advancement) of any officers and/or the managing member directors of the CompanyCompany or its Subsidiaries (each such officer or director, an “Indemnified Person”) as in effect as of the date of this Agreement that is adverse to such officers and/or directors (unless required by Law) (collectively, the “Charter Indemnification Obligations”), it being the intent of the parties that the Indemnified Persons shall continue to be entitled to such exculpation and indemnification (including fee advancement) thereunder to the full extent permitted by applicable Law. Solely with respect to this Section 7.20The Purchaser shall, no Indemnified Person and shall have any recourse against cause the Company for and its Subsidiaries to, honor and perform under all such Charter Indemnification Obligations owed to any Losses unless such of the Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses under the Seller Insurance PoliciesPersons.
(b) If Buyerthe Company, the Company its Subsidiaries or any of their respective successors or assigns (i) consolidates is to consolidate with or merges into any other Person and will not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers is to transfer all or substantially all of its properties or and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of such Persons, as the case may be, Company and its Subsidiaries shall expressly assume and be bound by all of the obligations set forth in this Section 7.208.02. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by, each 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.
(c) This Section 7.20 Notwithstanding anything herein to the contrary, if any Proceeding or investigation (whether arising before, at or after the Closing Date) 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. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect made against any Indemnified Person without or any other party covered by directors’ and officers’ liability insurance, on or prior to the consent sixth anniversary of such Indemnified Person.
(d) For the avoidance of doubtClosing Date, the provisions of this Section 7.20 and 8.02 shall continue in effect until the indemnification contemplated by this Section 7.20 shall not be subject to any final disposition of the survival such Proceeding or other limitation or exclusive remedy provisions of Article XIIinvestigation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Director and Officer Liability and Indemnification. (a) Buyer agrees Parent and Merger Sub agree that all rights to indemnification, advancement of expenses and or exculpation by existing on the Company now existing date hereof in favor of each Person who has been at any time prior to the Closing an officer or managing member officers and directors of the Company or its Subsidiaries (each, an “Indemnified Person”), as provided in the organizational Company’s and any of its Subsidiaries’ respective certificates of incorporation, bylaws or equivalent governing documents of the Company, in each case or otherwise as in effect on as of the date of this Agreementhereof, to the extent permitted by applicable Law, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until Merger for a period of six years after Closing, it being the sixth anniversary intent of the Closing Dateparties each Indemnified person of the Company and its Subsidiaries will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the law. For a period of six years after the Closing DateClosing, Buyer Parent shall cause the governing documents of the Surviving Company not to amendand its Subsidiaries, repeal or otherwise modify any provision in the Company’s Limited Liability Company Agreement, as amended, relating successor to the exculpation Surviving Company or indemnification (or limitation on liability) any of any officers and/or its Subsidiaries, to contain, to the managing member of the Company. Solely extent permitted by applicable Law, provisions that are no less favorable with respect to this Section 7.20indemnification, no advancement of costs and exculpation of Indemnified Person shall have any recourse against Persons as are set forth in the applicable governing documents of the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses under and its Subsidiaries on the Seller Insurance Policiesdate of this Agreement.
(b) If Buyer, the Company or any It is expressly agreed that each Indemnified Person is a third party beneficiary of their respective successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each case, the successors and assigns of such Persons, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20.
(c) This Section 7.20 is intended to be for the benefit of 6.01, each of the Indemnified Persons and whom may be enforced by any such Indemnified Person as if such Indemnified Person were a party to this Agreement. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, enforce the provisions of this Section 7.20 6.01, and the indemnification contemplated by this provisions of this Section 7.20 shall 6.01 may not be subject waived or modified in any manner which is materially adverse to any the interests of the survival or other limitation or exclusive remedy provisions of Article XIIan Indemnified Party without such Party’s prior written consent.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing DateClosing, the Buyer shall cause not, and shall not permit the Company not to Subs (or their subsidiaries) to, amend, repeal or otherwise modify any provision in the Company’s Limited Liability Company Agreement, as amended, Subs’ (or their subsidiaries) Governing Documents relating to the exculpation or indemnification of former officers and directors in any way which decreases or restricts the Subs’ (or limitation on liabilitytheir subsidiaries) of any officers and/or obligations thereunder except to the managing member extent required by Legal Requirements, it being the intent of the Company. Solely with respect parties that the officers and directors of the Subs (and their subsidiaries) prior to this Section 7.20, no Indemnified Person the Closing shall have any recourse against continue to be entitled to such exculpation and indemnification to the Company for any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses fullest extent permitted under the Seller Insurance Policiesapplicable Legal Requirements.
(b) If In the event that the Buyer, the Company Subs (or their subsidiaries) or any of their respective successors or assigns (i) consolidates with or merges into any other Person and 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 or and assets to any Person, then, then and in each either such case, proper provision shall be made so that the successors and assigns of such PersonsBuyer or the Subs (or their subsidiaries), as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20.
(c) This 10.4. The provisions of this Section 7.20 is 10.4 are intended to be for the benefit of of, and will be enforceable by, each of the Indemnified Persons indemnified party or insured Person, his or her heirs and may be enforced by his or her representatives, and are in addition to, and not in substitution for, any other right to indemnification or contribution that any such Indemnified Person as if such Indemnified Person were a party to this Agreement. The obligations of Buyer under this Section 7.20 shall not be terminated may have by contract or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Personotherwise.
(d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing Date, Buyer the Purchaser shall cause not, and shall not permit any Member of the Company not Group to amend, repeal or otherwise modify any provision in the Company’s Limited Liability organizational documents of any Member of the Company Agreement, as amended, Group relating to the exculpation or indemnification (or limitation on liability) of any officers and/or current or former officer or director (the managing member "D&O Indemnified Persons") (unless required by law), it being the intent of the parties that the D&O Indemnified Persons shall continue to be entitled to such exculpation and indemnification to the fullest extent permitted by law. At the Closing, the Purchaser shall, or shall cause the Acquired Company to, on behalf of the Company Group, 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 Acquired Company. Solely 's current insurance carrier with respect to this Section 7.20directors' liability insurance in an amount and scope at least as favorable as the Acquired Company's existing policies with respect to matters existing or occurring at or prior to the Closing Date. The Purchaser shall not, no Indemnified Person and shall have any recourse against cause each Member of the Company for Group not to, cancel or change such insurance policies in any Losses unless such Indemnified Person has used commercially reasonable efforts to first seek recovery for such Losses under respect. If the Seller Insurance Policies.
(b) If BuyerPurchaser, any Member of the Company Group or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties or and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of such Persons, as the case may be, Purchaser and the Company Group shall expressly assume and be bound by all of the obligations set forth in this Section 7.20.
(c) This Section 7.20 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 Agreement8.02. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 8.02 are intended for the benefit of, and the 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 contemplated or contribution that any such person may have had by this Section 7.20 shall not be subject to any of the survival contract or other limitation or exclusive remedy provisions of Article XIIotherwise.
Appears in 1 contract
Director and Officer Liability and Indemnification. (a) Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who has been at any time prior to the Closing an officer or managing member of the Company (each, an “Indemnified Person”), as provided in the organizational documents of the Company, in each case as in effect on the date of this Agreement, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms until the sixth anniversary of the Closing Date. For a period of six years after the Closing DateClosing, the Buyer shall cause not, and shall not permit the Company not Parent or the Company, to amend, repeal or otherwise modify any provision in the Parent’s or the Company’s Limited Liability Company Agreement, as amended, certificate or articles of incorporation or bylaws (or equivalent governing documents) relating to the exculpation or indemnification (or limitation on liability) of any officers and/or directors (unless required by Law), it being the managing member intent of the Company. Solely with respect to this Section 7.20, no Indemnified Person shall have any recourse against parties that the current and former officers and directors of the Parent and the Company for any Losses unless shall continue to be entitled to such Indemnified Person has used commercially reasonable efforts exculpation and indemnification to first seek recovery for such Losses under the Seller Insurance Policies.
full extent of the Law; provided, however, that (bi) If Buyer, no exculpation or indemnification by the Company or Parent shall be available to any director or officer for any claim arising out of any breach by such officer or director in his capacity as a Stockholder party to this Agreement under this Agreement or any of the other Operative Documents; (ii) neither the Company, nor Parent shall be limited from amending, repealing or modifying any provision of their respective successors certificate or assigns articles of incorporation or bylaws (ior equivalent governing documents) consolidates with relating to the exculpation or merges into any indemnification of their respective employees or other Person or agents, other than directors and officers; and (iii) neither the Company, nor Parent shall be restricted from reincorporating in another jurisdiction so long as in the cases of clauses (ii) transfers all and (iii), such action would not reduce or substantially all of its properties otherwise limited the extent to which former officers and/or directors are entitled to exculpation or assets to any Person, then, in each case, indemnification. The Buyer agrees and acknowledges that this Section 5.3 shall be binding on the Buyer’s successors and assigns of such Persons, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 7.20assigns.
(c) This Section 7.20 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. The obligations of Buyer under this Section 7.20 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person.
(d) For the avoidance of doubt, the provisions of this Section 7.20 and the indemnification contemplated by this Section 7.20 shall not be subject to any of the survival or other limitation or exclusive remedy provisions of Article XII.
Appears in 1 contract
