Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior to the Effective Time) and former officer, director, manager or employee of the Company or its Subsidiaries (the “Indemnified Individuals”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Individual was an officer, director, manager or employee of the Company at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law (an “Indemnified Matter”). In the event of any Indemnified Matter, (A) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense of any such matter. (b) The certificate of formation and limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents of the Company as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals. (c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time. (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise. (f) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company shall succeed to the obligations set forth in this Section 7.7.
Appears in 1 contract
Samples: Merger Agreement (IHS Markit Ltd.)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee PlanCompany Benefit Plan or Company Benefit Arrangement, from Purchaser agrees that all rights to indemnification, advancement of expenses and exculpation by the Effective Time through the sixth anniversary Company now existing in favor of the date on which the Effective Time occurs, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior to the Effective Time) and former officer, director, manager or employee Unitholder of the Company or and its Subsidiaries (the “Indemnified Individuals”) for such Indemnified Individual’s acts or omissions occurring at or prior to the Effective Time arising out of or pertaining to the fact that the Indemnified Individual is or was an officer, director, manager or Unitholder of the Company or its Subsidiaries as provided in the LLC Agreement as in effect on the date of this Agreement, or pursuant to any other indemnification agreements identified on Section 6.7(a) of the Company Disclosure Schedule in effect on the date of this Agreement (collectively, the “Indemnification Contracts”), shall survive the Merger from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs. Each of Purchaser and the Surviving Entity shall indemnify and hold harmless each Indemnified Individual from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Individual is or was an officer, director, manager manager, Unitholder, agent, employee or employee fiduciary of the Company or its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective TimeTime (including this Agreement, the Transactions and the other actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law (an “Indemnified Matter”). In the event of any Indemnified Matter, (A) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except each case to the extent the Surviving Company is materially prejudiced by or its Subsidiaries would have been required to indemnify such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise under applicable Law or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred as explicitly provided in the defense of such Indemnified Matter from LLC Agreement and the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request thereforIndemnification Contracts, (E) the Surviving Company shall not settle, compromise or consent to the entry of and in accordance with any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate procedures set forth in the defense of any such matterLLC Agreement and the Indemnification Contracts.
(b) The certificate of formation and Subject to any limitation imposed from time to time under applicable Law, the limited liability company agreement or other organizational agreements of the Surviving Entity and its Subsidiaries (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents of the Company LLC Agreement (or equivalent governing documents) as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing Date, Parent Purchaser shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’, managers’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent Purchaser agrees to take all necessary actions to maintain such policies policy in full force and effect and fulfill its Purchaser’s obligations thereunder throughout such six (6) year period following the Effective Time.
(d) Notwithstanding anything to the contrary in this Section 6.7, Purchaser agrees that any indemnification, advancement of expenses or insurance available to any Indemnified Individual who at or prior to the Closing was a director of the Company or any of its Subsidiaries by virtue of such Indemnified Individual’s service as a partner, member or employee of any investment fund or management entity affiliated with or managed by Corsair at or prior to the Closing (any such Indemnified Individual, a “Corsair Director”) shall be secondary to the indemnification, advancement of expenses and insurance to be provided by Purchaser, the Surviving Entity and its Subsidiaries pursuant to this Section 6.7 and that the Surviving Entity and its Subsidiaries (i) shall be the primary indemnitors of first resort for Corsair Directors pursuant to this Section 6.7, (ii) shall be fully responsible for the advancement of expenses, indemnification and exculpation from liabilities with respect to Corsair Directors that are addressed by this Section 6.7 and (iii) shall not make any claim for contribution, subrogation or any other recovery of any kind in respect of any other indemnification or insurance available to any Corsair Director with respect to any matter addressed by this Section 6.7.
(e) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 7.7 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(ef) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(fg) In the event that the Surviving Company Entity or Purchaser or any of its their respective successors or permitted assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and permitted assigns of the Surviving Company Entity or Purchaser, as the case may be, shall succeed to the obligations set forth in this Section 7.76.7.
Appears in 1 contract
Samples: Merger Agreement (PJT Partners Inc.)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Company Benefit Plan, from the Effective Time Closing through the sixth (6th) anniversary of the date on which the Effective Time occursClosing Date, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior to the Effective TimeClosing) and former officer, director, manager officer or employee director of the Company or and its Subsidiaries (the “Indemnified Individuals”) from and against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursementsdisbursements (“Losses”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Individual is or was an officer, director, manager manager, employee or employee agent of the Company or its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective TimeClosing (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted required under the Organizational Documents of the Company or its applicable Law (an “Indemnified Matter”)Subsidiary as of the date hereof. In the event of any Indemnified Mattersuch claim, (A) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunderaction, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7suit, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise proceeding or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matterinvestigation, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter any claim, action, suit, proceeding or investigation from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry fullest extent required under the Organizational Documents of any judgment in any Indemnified Matter unless such settlement, compromise the Company or consent includes an unconditional release its applicable Subsidiary as of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense of any such matterdate hereof.
(b) Each of Purchaser and the Company agrees that any indemnification and advancement of expenses available to any Indemnified Individual by virtue of such Indemnified Individual’s service as a partner or employee of, or affiliation with, the Seller, the Sponsors or any investment fund sponsored, managed or advised by the Sponsors (any such Indemnified Individual, a “Seller Director”) shall be secondary to the indemnification and advancement of expenses to be provided by Purchaser and the Company pursuant to this Section 7.7 and that Purchaser and the Company (i) shall be the primary indemnitors of first resort for Seller Directors pursuant to this Section 7.7, (ii) shall be fully responsible for the advancement of all expenses and the payment of all Losses with respect to Seller Directors which are addressed by this Section 7.7 and (iii) shall not make any claim for contribution, subrogation or any other recovery of any kind in respect of any other indemnification available to any Seller Director with respect to any matter addressed by this Section 7.7.
(c) The certificate of formation and limited liability company agreement (or equivalent governing documents) Organizational Documents of each of the Surviving Company and its Subsidiaries shall for a period of six (6) years after the Closing Date contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers Indemnified Individuals than are set forth in the Organizational Documents of the Company and its Subsidiaries as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to lawLaw, contract Contract or otherwise.
(e) Prior to the Closing, the Company shall purchase a six (6)-year “tail” prepaid policy(ies) (the “D&O Tail Policy”) on the existing policy(ies) of the Company’s directors’ and officers’ liability insurance (the “D&O Policy”), in a form reasonably acceptable to Purchaser, covering claims and other matters arising from facts or events that occurred at or prior to the Closing and covering each Indemnified Individual and other natural person insureds who are covered as of the Closing by the D&O Policy on terms and conditions (including limits and retentions) no less favorable to each Indemnified Individual and other natural person insureds than the D&O Policy. Subject to the limitation set forth in Section 11.6, Purchaser and Seller shall share equally the cost of the D&O Tail Policy.
(f) In the event that the Surviving Company or any of its 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 company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or its Subsidiaries, as the case may be, shall succeed to the obligations set forth in this Section 7.7.
(g) The obligations of Purchaser or the Company under this Section 7.7 shall not be terminated or modified in such a manner as to materially and adversely affect any Indemnified Individual to whom this Section 7.7 applies (it being expressly understood that each Indemnified Individual shall be a third-party beneficiary of this Section 7.7).
Appears in 1 contract
Samples: Stock Purchase Agreement (Arthur J. Gallagher & Co.)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Company Benefit Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Company Corporation shall indemnify and hold harmless each present (as of immediately prior to the Effective Time) and former officer, director, manager manager, agent, employee or employee fiduciary of the Company or and its Subsidiaries (the “Indemnified Individuals”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Individual is or was an officer, director, manager manager, agent, employee, fiduciary or employee agent of the Company or its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective TimeTime (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law (an “Indemnified Matter”)Law. In the event of any Indemnified Mattersuch claim, action, suit, proceeding or investigation, (Ax) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter any claim, action, suit, proceeding or investigation from Parent or the Surviving Company Corporation within ten 10 Business Days of receipt by the Surviving Company Parent from the Indemnified Individual of a request therefor, (Ey) neither Parent nor the Surviving Company Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Matter Individual hereunder), unless such settlement, compromise or consent includes an unconditional release of an applicable such Indemnified Individual from all liability arising out of such Indemnified Matter action, suit, proceeding, investigation or claim or such Indemnified Individual otherwise consents and (Fz) the Surviving Company Corporation shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation incorporation and limited liability company agreement bylaws (or equivalent governing documents) of each of the Surviving Company Corporation and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents organizational documents of the Company (or equivalent governing documents) as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided provided, however, that in no event shall Parent shall not be required to pay an amount in respect of such “tail” insurance policy expend, for the entire tail policy, in excess of 300175% of the last annual premium currently paid by the Company prior to the date hereof in respect and its Subsidiaries for their current policy of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereofinsurance. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six six-year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.7 6.9 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Company Corporation or Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 7.76.9. In addition, the Surviving Corporation shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Corporation unable to satisfy its obligations under this Section 6.9.
Appears in 1 contract
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee PlanFor a period of six (6) years after the Closing, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs(i) Parent shall not, and shall not permit the Surviving Company shall indemnify Corporation and hold harmless each present Acquired Companies to, amend, repeal or modify any provision in the Acquired Companies’ articles of incorporation, bylaws, or other similar organizational documents (as of immediately prior with retroactive effect) relating to the Effective Timeexculpation, indemnification or advancement of expenses of any present or former officers, managers and directors (each, a “D&O Indemnified Person”) (unless and to the extent required by Law) and former officer(ii) Parent shall, directorand shall cause the Surviving Corporation and Acquired Companies (each, manager or employee of the Company or its Subsidiaries (the a “Indemnified IndividualsD&O Indemnifying Party”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Individual was an officer, director, manager or employee of the Company at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under by applicable Law (an “Indemnified Matter”). In the event of any Indemnified MatterLaw, (A) indemnify and hold harmless the D&O Indemnified Persons against all D&O Expenses (as defined below) and all Losses, claims, damages, judgments and amounts paid in settlement (“D&O Costs”) in respect of any threatened, pending or completed Legal Proceeding, whether criminal, civil, administrative or investigative, based on, arising out of or relating to the fact that such Person is or was a director or officer of the Acquired Companies or arising out of acts or omissions occurring on or prior to the Closing (a “D&O Indemnifiable Claim”), including in accordance with the D&O Indemnification Agreements identified on Section 3.13(a)(xiv) of the Company Disclosure Schedule, if any, and (B) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim promptly after receipt by an Indemnified Individual of notice statements therefor. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunderor all judgments, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7Orders, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals decrees or other rulings in connection with such Indemnified MatterD&O Indemnifiable Claim are fully and finally satisfied. For the purposes of this Agreement, (C) no Indemnified Individual “D&O Expenses” shall settleinclude reasonable attorneys’ fees and all other reasonable, compromise documented costs, charges and expenses paid or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual incurred in connection with such Indemnified Matterinvestigating, each Indemnified Individual will defending, being a witness in or participating in (including on appeal), or preparing to defend, to be entitled to advancement of expenses incurred a witness in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry of any judgment participate in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense of any such matterD&O Indemnifiable Claim.
(b) The certificate of formation and limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents of the Company as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing DateClosing, Parent the Company shall purchase a obtain, maintain and fully pay for irrevocable “tail” insurance policy for policies reasonably satisfactory to Parent naming the D&O Indemnified Persons as direct beneficiaries with a claims period of six years after the Effective Time, with reputable and financially sound carriers of at least six (6) years from the Closing Date (each, a “D&O Tail Policy”) from an insurance carrier with the same coverage and amounts and containing terms and conditions that are no less advantageous than or better financial-strength rating as the Company’s current policies of insurance carrier with respect to directors’ and officers’ liability insurance maintained by in an amount and scope that is, in the Company aggregate at least as favorable to the Acquired Companies’ directors and its Subsidiaries officers as the Acquired Companies’ respective existing policies with respect to claims arising from matters existing or related to facts or events that occurred occurring at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary Closing Date; provided, however, that such cost, if incurred or to be paid by the Company, shall not be included as a current liability in the Adjusted Working Capital calculation. Parent shall not, and shall cause the Company not to, cancel or change such insurance policies in any respect. The Company and Parent shall be equally (50% / 50%) responsible for the costs of the Effective Time, the provisions of this Section 7.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigationD&O Tail Policy.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(fc) In the event that Parent, the Surviving Company Acquired Companies or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and other assets to any Person, then, and in each such case, Parent shall cause proper provision shall to be made so that the applicable successors and assigns of the Surviving Company shall succeed to or transferees expressly assume the obligations set forth in this Section 7.76.7.
(d) Parent and the Company acknowledge that the Company’s obligations of indemnification pursuant to the ESOP, the Trust Agreement and the engagement letter between the Company and the ESOP Trustee, will survive the Closing.
Appears in 1 contract
Samples: Merger Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Company Benefit Plan, from the Effective Time Closing through the sixth anniversary of the date on which Closing Date, each of Purchaser and the Effective Time occurs, the Surviving Company Entities shall indemnify and hold harmless each present (as of immediately prior to the Effective TimeClosing) and former officer, director, director or manager or employee of the Company or its Subsidiaries Entities (the “Indemnified Individuals”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Individual is or was an officer, director, director or manager or employee of any of the Company Entities and to the extent relating to matters existing or occurring at or prior to the Effective TimeClosing (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under by applicable Law (an “Indemnified Matter”)and to the extent required pursuant to the governing documents of the Company Entities in effect as of the date hereof. In the event of any Indemnified Mattersuch claim, action, suit, proceeding or investigation, (Ax) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter any claim, action, suit, proceeding or investigation from Purchaser, the Surviving General Partner or the Company within ten Business Days to the extent required pursuant to the governing documents of receipt by the Surviving Company from Entities in effect as of the Indemnified Individual of a request therefordate hereof, (Ey) none of Purchaser, the Surviving General Partner or the Company shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Matter Individual hereunder) unless such settlement, compromise or consent includes an unconditional release of an applicable such Indemnified Individual from all liability arising out of such Indemnified Matter action, suit, proceeding, investigation or claim or such Indemnified Individual otherwise consents and (Fz) the Surviving General Partner and the Company shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation incorporation and bylaws, limited partnership agreement, limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries Entity shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents governing documents of the Company such Persons as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time Closing in any manner that would adversely affect the rights thereunder of any such individuals, unless such modification is required by Law.
(c) Prior to the Closing Date, Parent Purchaser shall purchase a “tail” insurance policy for a period of six years after the Effective TimeClosing, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries Entities as of immediately prior to the Closing with respect to claims arising from or related to facts or events that occurred at or before the Effective TimeClosing; provided that Parent shall not in no event will Purchaser be required to pay expend for each covered year an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by for such insurance in the Company prior to last full fiscal year (the date hereof “Maximum Premium”) and if such insurance can only be obtained at an annual premium in respect excess of its directors’ and officers’ liability insurance coverage; providedthe Maximum Premium, further that if the Parent is unable to Purchaser will obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable maximum insurance as possible can be obtained for each year within such the six-year period for an aggregate amount equal to 300% a premium not in excess of the last annual premium paid by the Company prior to the date hereofMaximum Premium. Parent Purchaser agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six six-year period following the Effective TimeClosing.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective TimeClosing) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective TimeClosing Date, the provisions of this Section 7.7 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Purchaser, any Company Entity or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Purchaser or the Surviving applicable Company Entity, as the case may be, shall succeed to the obligations set forth in this Section 7.76.7. In addition, no Company Entity shall distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render such Company Entity unable to satisfy its obligations under this Section 6.7.
Appears in 1 contract
Director and Officer Liability; Indemnification. (a) Without limiting For a period of six (6) years after the Closing, (i) Parent shall not, and shall not permit the Group Companies to, amend, repeal or modify any additional rights that provision in any Person may have under any Employee Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior their Organizational Documents relating to the Effective Time) and exculpation, indemnification or advancement of expenses of any present or former officerofficers, directormanagers and/or directors (each, manager or employee of the Company or its Subsidiaries (the a “D&O Indemnified IndividualsPerson”) from (unless and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact extent required by Law) in a manner that would materially adversely affect the rights of D&O Indemnified Individual was an officerPersons and (ii) Parent shall, director, manager or employee of and shall cause the Company at or prior to the Effective Time, whether asserted or claimed prior Group Companies to, at or after the Effective Time, to the fullest extent permitted under by applicable Law (an “Indemnified Matter”). In the event of any Indemnified MatterLaw, (A) promptly after receipt by an indemnify and hold harmless the D&O Indemnified Individual of notice of its involvement Persons against all D&O Expenses (as defined below) and all Losses, claims, damages, judgments and amounts paid in such Indemnified Matter settlement in respect of which indemnification may be sought hereunderany threatened, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7pending or completed claim, except to the extent the Surviving Company is materially prejudiced by such failure)action or proceeding, (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matterwhether criminal, (C) no Indemnified Individual shall settlecivil, compromise administrative or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheldinvestigative, conditioned based on or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of or relating to the fact that such Indemnified Matter Person is or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense was a director or officer of any such matter.
(b) The certificate of formation and limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement Group Companies or arising out of expenses and exculpation of former acts or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents of the Company as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual omissions occurring on or prior to the sixth anniversary Closing (a “D&O Indemnifiable Claim”) and (B) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim promptly after receipt of statements therefor. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all Orders in connection with such D&O Indemnifiable Claim are fully and finally satisfied. For the Effective Time, the provisions purposes of this Section 7.7 Agreement, “D&O Expenses” shall continue include reasonable attorneys’ fees and all other reasonable costs, charges and expenses paid or incurred in effect until the final disposition of such claimconnection with investigating, actiondefending, suitbeing a witness in or participating in (including on appeal), proceeding or investigation.
(e) This covenant is intended preparing to defend, to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of a witness in or participate in any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwiseD&O Indemnifiable Claim.
(f) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company shall succeed to the obligations set forth in this Section 7.7.
Appears in 1 contract
Samples: Merger Agreement (NV5 Global, Inc.)
Director and Officer Liability; Indemnification. (a) Without limiting For a period of six (6) years after the Closing, (i) Purchaser shall not, and shall not permit the Company to, amend, repeal or modify any additional rights that any Person may have under any Employee Planprovision in the Company’s articles of incorporation, from the Effective Time through the sixth anniversary of the date on which the Effective Time occursbylaws, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior or other similar organizational documents relating to the Effective Timeexculpation, indemnification or advancement of expenses of any present or former officers, managers and/or directors (each, a “D&O Indemnified Person”) (unless and to the extent required by Law) and former officer(ii) Purchaser shall, director, manager or employee of and shall cause the Company or its Subsidiaries (the each, a “Indemnified IndividualsD&O Indemnifying Party”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Individual was an officer, director, manager or employee of the Company at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law (an “Indemnified Matter”). In by the event of any Indemnified MatterCompany’s organizational documents, (A) promptly after receipt by an indemnify and hold harmless the D&O Indemnified Individual of notice of its involvement Persons against all D&O Expenses (as defined below) and all Losses, claims, damages, judgments and amounts paid in such Indemnified Matter settlement (“D&O Costs”) in respect of which indemnification may be sought hereunderany threatened, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7pending or completed claim, except to the extent the Surviving Company is materially prejudiced by such failure)action or other Legal Proceeding, (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise based on or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation and limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior relating to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents fact that such Person is or was a director or officer of the Company as or arising out of the date hereof, which provisions shall not be amended, repealed acts or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual omissions occurring on or prior to the sixth anniversary Closing (a “D&O Indemnifiable Claim”) and (B) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim promptly after receipt of statements therefor. 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 Effective Time, the provisions purposes of this Section 7.7 Agreement, “D&O Expenses” shall continue include attorneys’ fees and all other costs, charges and expenses paid or incurred in effect until the final disposition of such claimconnection with investigating, actiondefending, suitbeing a witness in or participating in (including on appeal), proceeding or investigation.
(e) This covenant is intended preparing to defend, to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of a witness in or participate in any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwiseD&O Indemnifiable Claim.
(f) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company shall succeed to the obligations set forth in this Section 7.7.
Appears in 1 contract
Director and Officer Liability; Indemnification. (a) Without limiting Buyer, Merger Subsidiary and the Company agree that all rights to indemnification and all limitations on liability existing in favor of any additional rights that Indemnified Party (as defined below) as provided in the Company's Certificate of Incorporation, Bylaws or an agreement between an Indemnified Party and the Company and any Person may have under any Employee Plan, from of its Subsidiaries as in effect as of the date hereof shall survive the Merger and continue in full force and effect for six years after the Effective Time through the sixth anniversary of the date on which the Effective Time occursand for such period, Buyer shall, and shall cause the Surviving Company shall Corporation to the fullest extent permitted by law to, indemnify and hold harmless each present (as of immediately the individuals who on or prior to the Effective Time) and former officer, director, manager Time were officers or employee directors of the Company or and any of its Subsidiaries (the “each, an "Indemnified Individuals”Party") from and against all losses, expenses (including, without limitation, attorneys' fees and the cost of any investigation or preparation incurred in connection thereof), claims, lossesdamages, liabilities, damages, judgments, inquiriesor amounts paid in settlement (collectively, fines and reasonable fees"Costs") in respect to any threatened, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any pending or contemplated claim, action, suit, proceeding suit or investigationproceeding, whether criminal, civil, criminal, administrative or investigative, investigative arising out of acts or omissions occurring on or prior to the Effective Time except for any Costs arising out of or pertaining related to any Xxxxxxxxx Claims and except as otherwise provided in subsection (e) below (each, an "Indemnifiable Claim"). In the fact that event any Indemnifiable Claim is asserted or made within such six-year period, all rights to indemnification and advancement of costs in respect of any such Indemnifiable Claim shall continue until such Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such Indemnifiable Claim are fully satisfied. To the Indemnified Individual was an officerextent permitted by the DGCL, directoradvancement of expenses pursuant to this Section 6.6 shall be mandatory rather than permissive and the Surviving Corporation shall advance all Costs in connection with such indemnification.
(b) For six years after the Effective Time, manager Buyer will cause the Surviving Corporation, its successors and assigns to provide officers' and directors' liability insurance in respect of acts or employee of the Company omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law (an “Indemnified Matter”). In the event of any Indemnified Matter, (A) promptly after receipt by an Indemnified Individual of notice of its involvement in Time covering each such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt Person currently covered by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent Company's officers' and directors' liability insurance policy on terms with respect to the entry of any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents coverage and (F) the Surviving Company shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation and limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions amount no less favorable with respect than those of such policy in effect on the date hereof; provided that in satisfying its obligations under this Section 6.6(b), Buyer shall not be obligated to indemnification, advancement pay premiums in excess of expenses 150% of the premium for the officers and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents of directors liability insurance policy paid by the Company as of the date hereof, which provisions amount has been disclosed to Buyer. Buyer shall not be amended, repealed or otherwise modified for a period cause the Surviving Corporation to continue to indemnify in accordance with the Company's past practices each of six years from the Effective Time employees listed in any manner that would adversely affect Section 6.6 of the rights thereunder Company Disclosure Schedule in respect of any the lawsuit set forth opposite such individualsemployee's name in such Section.
(c) Prior to Notwithstanding any other provisions hereof, the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% obligations of the last annual premium paid by Company, the Company prior to the date hereof Surviving Corporation and Buyer contained in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and 6.6 shall be enforceable by, each binding upon the successors and assigns of Buyer and the Indemnified Individuals and their respective heirs and legal representativesSurviving Corporation. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Company or the Surviving Company Corporation or any of its their respective successors or assigns (iI) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and or assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company shall succeed to Corporation, as the case may be, honor the indemnification obligations set forth in this Section 7.76.6.
(d) The obligations of the Company, the Surviving Corporation and Buyer under this Section 6.6 shall not be terminated or modified in such a manner as to affect adversely any director or officer to whom this Section 6.6 applies without the consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 6.6 applies shall be third party beneficiaries of this Section 6.6
Appears in 1 contract
Samples: Merger Agreement (PCS Holding Corp)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Company Benefit Plan, from the Effective Time Closing through the sixth anniversary of the date on which Closing Date, each of Purchaser and the Effective Time occursCompany shall, and shall cause the Surviving Company shall Acquired Subsidiaries to, indemnify and hold harmless each present (as of immediately prior to the Effective TimeClosing) and former officer, director, manager manager, agent, employee or employee fiduciary of the Company or its Subsidiaries Acquired Companies (the “Indemnified Individuals”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Individual is or was an officer, director, manager manager, agent, employee or employee fiduciary of the Company Acquired Companies or (ii) matters existing or occurring at or prior to the Effective TimeClosing (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under by applicable Law (an “Indemnified Matter”)Law. In the event of any Indemnified Mattersuch claim, action, suit, proceeding or investigation, (Ax) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter any claim, action, suit, proceeding or investigation from Purchaser or the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request thereforCompany, (Ey) neither Purchaser nor the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Matter Individual hereunder) unless such settlement, compromise or consent includes an unconditional release of an applicable such Indemnified Individual from all liability arising out of such Indemnified Matter action, suit, proceeding, investigation or claim or such Indemnified Individual otherwise consents and (Fz) the Surviving Company shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation incorporation and limited liability company agreement bylaws (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries Acquired Companies shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents organizational documents of the Company (or equivalent governing documents) as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time Closing in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective TimeClosing) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective TimeClosing, the provisions of this Section 7.7 6.8 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(ed) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(fe) In the event that the Surviving Company or Purchaser or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or Purchaser, as the case may be, shall succeed to the obligations set forth in this Section 7.76.8.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ingersoll Rand Inc.)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Plan, from If the Effective Time through the sixth anniversary of the date on which the Effective Time Closing occurs, the Surviving Company agrees that all rights to indemnification and all limitations on liability existing in favor of any Company Indemnitee as provided in the certificates of incorporation or bylaws of the Company or any Subsidiary of the Company, or any Indemnity Agreement to which the Company or any Subsidiary of the Company is a party, shall survive the consummation of the transactions contemplated by this Agreement and continue in full force and effect and be honored by the Company and the Subsidiaries of the Company after the Closing. To the extent permitted by (i) the certificate of incorporation and bylaws of the Company or any Subsidiary of the Company or (ii) any agreement providing for indemnification by the Company, any Subsidiary of the Company or any Company Indemnitee in effect on the date of this Agreement (an "INDEMNITY AGREEMENT"), advancement of Expenses pursuant to this Section 5.5(a) shall be mandatory rather than permissive and the Company shall advance any Expenses in connection with such indemnification. In addition to the other rights provided for in this Section 5.5(a) and not in limitation thereof, for six years from and after the Closing Date, the Company shall, and shall cause the Subsidiaries of the Company to, to the fullest extent permitted by applicable law, (i) indemnify and hold harmless each present (as of immediately the individuals who on or prior to the Effective TimeClosing Date were officers, directors or employees of the Company or any Subsidiary of the Company, and the heirs, trustees, fiduciaries and administrators of such officers, directors or employees (collectively, the "COMPANY INDEMNITEES") and former officeragainst all losses, Expenses, claims, damages, liabilities, judgments, or amounts paid in settlement (collectively, "COSTS") in respect of any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative to the extent based on, or arising out of or relating to the fact that such person is or was a director, manager officer or employee of the Company or its Subsidiaries any Subsidiary of the Company and arising out of acts or omissions occurring on or prior to the Closing Date (including, without limitation, in respect of acts or omissions in connection with this Agreement and the “Indemnified Individuals”transactions contemplated hereby) from (an "INDEMNIFIABLE CLAIM") and against (ii) advance to such Company Indemnitees all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, Expenses incurred in connection with any claimIndemnifiable Claim promptly after receipt of a reasonably detailed statement therefor. In the event any Indemnifiable Claim is asserted or made within such six year period, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out all rights to indemnification and advancement of Expenses in respect of any such Indemnifiable Claim shall continue until such Indemnifiable Claim is disposed of or pertaining to the fact all judgments, orders, decrees or other rulings in connection with such Indemnifiable Claim are fully satisfied; PROVIDED, HOWEVER, that the Indemnified Individual was an officer, director, manager Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or employee delayed). The obligations of the Company and the Subsidiaries of the Company under this Section 5.5(a) shall not be terminated or modified in such a manner as to adversely affect any Company Indemnitee to whom this Section 5.5(a) applies without the consent of such affected Company Indemnitee (it being expressly agreed that the Company Indemnitees to whom this Section 5.5(a) applies shall be third party beneficiaries of this Section 5.5(a)). If the Closing occurs, the Company shall, and shall cause the Subsidiaries of the Company to pay all Expenses to any Company Indemnitee incurred in enforcing the indemnity or other obligations provided for in this Section 5.5(a).
(b) For six years after the Closing, the Company will provide and will cause the Subsidiaries of the Company to provide officers' and directors' liability insurance in respect of acts or omissions occurring at or prior to the Effective TimeClosing Date covering each such person currently covered by the Company's officers' and directors' liability insurance policy on terms with respect to coverage and amount not materially less favorable than those of such policy in effect on the date hereof; PROVIDED, whether asserted HOWEVER, that in no event shall the Company or claimed prior to, at or after the Effective Time, Subsidiaries of the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the fullest extent permitted under applicable Law Company for such insurance (an “Indemnified Matter”the "MAXIMUM AMOUNT"). In the event of that any Indemnified Matter, (A) promptly after receipt by Company Indemnitee is entitled to coverage under an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from officers' and directors' liability which they may have to such Indemnified Individual insurance policy pursuant to this Section 7.75.5(b) and such policy has lapsed, except terminated, been repudiated or is otherwise in breach or default as a result of the Company's or the Company's Subsidiaries' failure to the extent the Surviving Company is materially prejudiced by maintain and fulfill its obligations pursuant to such failurepolicy as provided in this Section 5.5(b), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation and limited liability company agreement (or equivalent governing documents) of each of the Surviving Company and its the Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents of the Company shall pay to the Company Indemnitee such amounts and provide any other coverage or benefits as of the date hereof, which provisions Company Indemnitee shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any have received pursuant to such individualspolicy.
(c) Prior to the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Personperson, then, then and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company (or their successors and assigns) shall succeed to assume the obligations set forth in this Section 7.75.5.
Appears in 1 contract
Samples: Recapitalization Agreement (Allotech International Inc)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Company Benefit Plan, from the Effective Time Closing through the sixth anniversary of the date on which Closing Date, each of Purchaser and the Effective Time occurs, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior to the Effective TimeClosing) and former officer, directordirector or manager, manager or employee of the Company or and its Subsidiaries (the “Indemnified Individuals”) from and against all claims, losses, liabilitiesxxxxxxxxxxx, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, expenses (including attorneys’ fees and disbursementsdisbursements in advance of the final disposition of any actual or threatened claim to the fullest extent permitted by Law and provided that such Indemnified Individual provides an undertaking to repay such advances to the extent if it is ultimately determined that such Indemnified Individual is not entitled to indemnification), incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminalcriminal or administrative, administrative with respect to matters existing or investigative, arising out of or pertaining to the fact that the Indemnified Individual was an officer, director, manager or employee of the Company occurring at or prior to the Effective TimeClosing (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under by applicable Law (an “Indemnified Matter”)Law. In the event of any Indemnified Mattersuch claim, action, suit, proceeding or investigation, (Ax) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter any claim, action, suit, proceeding or investigation from Purchaser or the Surviving Company within ten Business Days of promptly following receipt by the Surviving Company Purchaser from the Indemnified Individual of a request therefor, (Ey) neither Purchaser nor the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (in which indemnification could be sought by such Indemnified Matter Individual hereunder) unless such settlement, compromise or consent includes an unconditional release of an applicable such Indemnified Individual from all liability arising out of such Indemnified Matter action, suit, proceeding, investigation or claim or such Indemnified Individual otherwise consents and (Fz) the Surviving Company shall reasonably cooperate with such Indemnified Individual in the defense of any such matter. Notwithstanding anything to the contrary contained herein, Purchaser shall not be required to indemnify any Person for such Person’s criminal conduct or fraud.
(b) The Purchaser shall, or shall cause the Company to procure, bind and pay in full, at Purchaser’s expense, all premiums for a tail insurance coverage policy (the “Tail Insurance Coverage”) and maintain such insurance for a claims reporting or discovery period of at least six (6) years from the Closing Date, from an insurance carrier with the same or better credit ratings as the Company’s current insurance carrier as of the date hereof with respect to its currently existing directors’ and officers’ liability insurance policy set forth in Section 7.8(b) of the Company Disclosure Schedule, for the benefit of the Indemnified Individuals who, as of the Closing Date, are covered by such currently effective directors’ and officers’ liability insurance policy (such Persons, together with any other prior directors or officers of the Company and its Subsidiaries, the “D&O Indemnified Parties”), which shall provide the D&O Indemnified Parties with terms, conditions, retentions and levels of coverage in the aggregate not materially less favorable to the D&O Indemnified Parties than, the directors’ and officers’ liability insurance coverage presently maintained by the Company; provided that in no event shall Purchaser or the Company be required to expend for such tail policy pursuant to this sentence a premium amount in excess of 250% of the amount per annum the Company paid for the directors’ and officers’ liability insurance coverage presently maintained by the Company in its last full fiscal year (the “Premium Cap”); provided, further, that if the amount necessary to procure such insurance coverage exceeds the Premium Cap, Purchaser shall, or shall cause the Company to, purchase the most advantageous policy available for an amount not to exceed the Premium Cap. Purchaser shall cause the Company following the Closing to maintain any such Tail Insurance Coverage in full force and effect and continue to honor the obligations thereunder until the sixth anniversary of the Closing.
(c) For a period of not less than six (6) years after the Closing Date, Purchaser, to the fullest extent permitted under applicable Law, shall cause to be maintained in effect the provisions of the certificate of formation incorporation and limited liability company agreement bylaws (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents organizational documents of the Company (or equivalent governing documents) as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a during such six (6) year period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to individual who immediately before the Closing Date, Parent shall purchase a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay was an amount in respect of such “tail” insurance policy in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective TimeIndemnified Individual.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective TimeClosing) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective TimeClosing, the provisions of this Section 7.7 7.8 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to lawLaw, contract Contract or otherwise.
(f) In the event that the Surviving Company or Purchaser or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or Purchaser, as the case may be, shall succeed to the obligations set forth in this Section 7.77.8.
Appears in 1 contract
Director and Officer Liability; Indemnification. For a period of six (a6) Without limiting any additional rights that any Person may have under any Employee Plan, from years after the Effective Time through Closing in the sixth anniversary of the date on which the Effective Time occurs, the Surviving Company shall indemnify and hold harmless each present (as of immediately prior to the Effective Time) and former officer, director, manager or employee case of the Company or seven (7) years in the case of the Israeli Company Subsidiary, (i) Parent shall not, and shall not permit the Surviving Corporation or its Subsidiaries (to, amend, repeal or modify any provision in the “Indemnified Individuals”) from and against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with Company’s or any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Individual was an officer, director, manager or employee of the Company at or prior Subsidiaries’ organizational documents relating to the Effective Timeexculpation, whether asserted indemnification or claimed prior advancement of expenses of any present or former officers, managers and/or directors (each, a “D&O Indemnified Person”) (unless and to the extent required by Law) and (ii) Xxxx Group shall and, jointly and severally, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, at or after the Effective Time, to the fullest extent permitted under applicable Law (an “Indemnified Matter”). In the event of any Indemnified Matter, (A) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of such Indemnified Matter from the Surviving Company within ten Business Days of receipt by the Surviving Company from the Indemnified Individual of a request therefor, (E) the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any Indemnified Matter unless such settlement, compromise or consent includes an unconditional release of an applicable Indemnified Individual from all liability arising out of such Indemnified Matter or such Indemnified Individual otherwise consents and (F) the Surviving Company shall reasonably cooperate in the defense of any such matter.
(b) The certificate of formation and limited liability company agreement (or equivalent governing documents) respective organizational documents of each of the Surviving Corporation and each Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnificationSubsidiary, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directorsapplicable, managers and officers than are set forth in the Organizational Documents of the Company as of the date hereof, which provisions indemnify and hold harmless the D&O Indemnified Persons against and shall advance as incurred all D&O Expenses (provided the D&O Indemnified Person to whom D&O Expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not be amendedentitled to indemnification pursuant to this Section 4.5) and all Losses, repealed or otherwise modified for a period of six years from the Effective Time claims, damages, judgments and amounts paid in any manner that would adversely affect the rights thereunder settlement 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 individuals.
(c) Prior Person is or was a director or officer of the Company or any Company Subsidiaries or arising out of acts or omissions occurring on or prior to the Closing Date, Parent shall purchase (a “tail” insurance policy for a period D&O Indemnifiable Claim”) and (iii) Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to assume all obligations of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect each Company Subsidiary, as applicable, to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that Parent shall not be required to pay an amount D&O Indemnified Persons in respect of such “tail” insurance policy limitation of liability, exculpation, indemnification and advancement of expenses as provided in excess (A) the respective organizational documents of 300% each of the last annual premium paid by the Company prior to and each Company Subsidiary as in effect on the date hereof and (B) any indemnification agreements with a D&O Indemnified Person, which shall in respect of its directors’ each case survive the Closing and officers’ liability insurance coverage; provided, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies continue in full force and effect and fulfill its obligations thereunder throughout such six year period following the Effective Time.
(d) Notwithstanding anything herein to the contraryextent permitted by applicable Law. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, if any claimorders, action, suit, proceeding decrees or investigation (whether arising before, at or after other rulings in connection with such D&O Indemnifiable Claim are fully and finally satisfied. For the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions purposes of this Section 7.7 Agreement, “D&O Expenses” shall continue include attorneys’ fees and all other costs, charges and expenses paid or incurred in effect until the final disposition of such claimconnection with investigating, actiondefending, suitbeing a witness in or participating in (including on appeal), proceeding or investigation.
(e) This covenant is intended preparing to defend, to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representativesa witness in or participate in any D&O Indemnifiable Claim. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Company Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity corporation of such consolidation or merger or (ii) transfers or conveys all or a majority substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company Corporation, as the case may be, or at Parent’s option, Parent, shall succeed to assume the obligations set forth in this Section 7.74.5. In addition to the foregoing, Parent, Bioventus and the Company (including as the Surviving Corporation) shall enter into at the Effective Time the D&O Release attached hereto as Schedule 4.5. The maximum amount that may be recovered from the Xxxx Group pursuant to this Section 4.5, when taken together with any recovery from or amounts paid by the Xxxx Group pursuant to Article V hereof, shall in no circumstance exceed the aggregate amount of the Merger Consideration actually received by the Xxxx Group, it being understood that the Company Debt (other than the Related Party Debt) the Third Party Expense, the Contingent Bonus Pool and the Common Merger Consideration will not be received by the Xxxx Group.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Director and Officer Liability; Indemnification. (a) Without limiting any additional rights that any Person may have under any Employee Company Benefit Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, and shall cause the Surviving Company shall to, and the Surviving Company shall, indemnify and hold harmless each present (as of immediately prior to the Effective Time) and former officer, director, manager officer or employee director of the Company or and its Subsidiaries (the “Indemnified Individuals”) from and 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to (i) the fact that the Indemnified Individual is or was an officer, officer or director, manager or employee of the Company or its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective TimeTime (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted required to be indemnified by the Company under applicable Law any indemnification provision contained in the governing documents of the Company or any of its Subsidiaries (an as applicable) as in effect on the date of this Agreement and/or pursuant to any indemnity agreements between the Company and any such Person, in each case that continue to be in effect at the Effective Time (the “Indemnified MatterIndemnity Agreements”). In the event of any Indemnified Mattersuch claim, action, suit, proceeding or investigation, (A) promptly after receipt by an Indemnified Individual of notice of its involvement in such Indemnified Matter in respect of which indemnification may be sought hereunder, such Indemnified Individual will notify the Surviving Company in writing of such involvement (provided that failure to so notify the Surviving Company will not relieve the Surviving Company from liability which they may have to such Indemnified Individual pursuant to this Section 7.7, except to the extent the Surviving Company is materially prejudiced by such failure), (B) the Surviving Company shall be entitled to participate in and assume the defense of the Indemnified Individuals in connection with such Indemnified Matter, (C) no Indemnified Individual shall settle, compromise or consent to the entry of any judgment in any Indemnified Matter without the prior written consent of the Surviving Company (such consent not to be unreasonably withheld, conditioned or delayed), (D) if the Surviving Company does not elect to assume the defense of the Indemnified Individual in connection with such Indemnified Matter, each Indemnified Individual will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent or the Surviving Corporation in accordance with the governing documents of the Company and its Subsidiaries (as applicable) and the Indemnity Agreements (as applicable) upon receipt of an undertaking by such Indemnified Matter from the Surviving Company within ten Business Days Individual to repay such advances if it is ultimately cleared in a final, non-appealable judgment by a court of receipt by the Surviving Company from the competent jurisdiction that such Indemnified Individual of a request thereforis not entitled to indemnification hereunder or thereunder, (EB) neither Parent nor the Surviving Company shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Matter Individual hereunder), unless such settlement, compromise or consent includes an a full and unconditional release of an applicable such Indemnified Individual from all liability or potential liability arising out of such Indemnified Matter action, suit, proceeding, investigation or claim or such Indemnified Individual otherwise consents and (FC) the Surviving Company shall reasonably cooperate in have the right to control the defense of any such matterthereof.
(b) The certificate of formation incorporation and limited liability company agreement bylaws (or equivalent governing documents) of each of the Surviving Company and its Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present (as of immediately prior to the Effective Time) directors, managers and officers than are set forth in the Organizational Documents respective organizational documents of the Company and its Subsidiaries (as applicable) (or equivalent governing documents) as of the date hereofEffective Time, which provisions provisions, along with any Indemnity Agreements, shall not be amended, repealed repealed, terminated or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, in each case, except and only to the extent as required by applicable Law.
(c) Prior The Company shall purchase prior to the Closing Date, Parent shall purchase Effective Time a “tail” insurance policy for a period of six years after the Effective Time, with reputable and financially sound carriers of at least the same coverage and amounts and containing terms and conditions that are no less advantageous than the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from or related to facts or events that occurred at or before the Effective Time; provided that . Parent shall not be required cause the Surviving Company to pay an amount in respect of such “tail” insurance policy in excess of 300% of take, and the last annual premium paid by the Surviving Company prior to the date hereof in respect of its directors’ and officers’ liability insurance coverage; providedshall take, further that if the Parent is unable to obtain the insurance required by this Section 7.7(c), it shall obtain as much comparable insurance as possible for each year within such six-year period for an aggregate amount equal to 300% of the last annual premium paid by the Company prior to the date hereof. Parent agrees to take all necessary actions to maintain such policies in full force and effect and fulfill its obligations thereunder throughout such six six-year period following the Effective Time.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Individual on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 7.7 6.09 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual such individual is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Company or Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or Parent, as the case may be, shall succeed to the obligations set forth in this Section 7.76.09.
(g) The rights of indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which any Indemnified Individual may at any time be entitled. No right or remedy herein conferred by this Agreement is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity or otherwise.
Appears in 1 contract
