Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or shall cause the Company to purchase from an insurance carrier with a credit rating of A or better with respect to directors’, managers and officers’ liability insurance a prepaid insurance policy (i.e., “tail coverage”) which provides insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries at or prior to the Closing with a policy limit and on terms in each case no less favorable (including in with respect to scope) as the policy or policy(ies) maintained by the Company or any of its Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policy, the “D&O Tail Policy”); provided, however, that in satisfying its obligations under this Section 8.02(a), the Purchaser shall not be obligated to pay premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail Policy. (b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company and its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law. The Purchaser agrees and acknowledges that this Section 8.02 shall be binding on the Purchaser’s successors and assigns. (c) If the Company or its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.02. (d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director or similar functionary of the Company or its Subsidiaries at or prior to the Closing or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) The obligations under this Section 8.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director or similar functionary of the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intertape Polymer Group Inc)
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or Company shall cause the Company to purchase from an insurance carrier with a the same or better credit rating of A or better as the Company’s current insurance carrier with respect to directors’, managers managers’ and officers’ liability insurance a prepaid insurance policy (i.e., “tail coverage”) which provides provide “side A, B and C directors and officers” insurance coverage for each of the individuals who were officers, directors, directors or managers or similar functionaries of the Company or any of its Subsidiaries at or prior to the Closing with a policy limit and on terms in each case no less favorable (including in with respect to both policy limit and scope) as the policy or policy(ies) maintained by the Company or any of its the Company’s Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policypolicies, the “D&O Tail PolicyPolicies”); provided, however, that in satisfying its obligations under this Section 8.02(a), no event shall the Purchaser shall not be obligated to pay premiums in excess of three aggregate cost for the D&O Tail Policies exceed three-hundred percent (300%) of the amount paid by Company’s and its Subsidiaries’ most recent annual premium allocation (the “Maximum Premium”). If the aggregate annual premiums of such insurance coverage exceed the Maximum Premium, then the Company shall obtain a policy with the greatest coverage available for coverage for a cost not exceeding the Maximum Premium from insurance carriers with the same or better credit ratings as the Company’s and its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail PolicySubsidiaries’ current insurance carriers with respect to officers’ and directors’ liability insurance and fiduciary duty insurance.
(b) For a period of six (6) years after the Closing, the Purchaser Parent shall not, and shall not permit the Company and its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent governing documents) Governing Documents relating to the exculpation or indemnification of any officers, directors directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, directors and managers and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expensesexpenses to the same extent provided for under such Governing Documents) to the full extent of the Law. The Purchaser Xxxxxx agrees and acknowledges that this Section 8.02 shall be binding on the PurchaserParent’s successors and assigns.
(c) If the Company or its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.02.
(d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director or similar functionary manager of the Company or its Subsidiaries at or prior to the Closing or any other party covered by directors’, managers’ and officers’ liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The obligations under this Section 8.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director director, manager or similar functionary of each of the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract Contract or otherwise.
Appears in 1 contract
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or shall cause the Company to purchase from an insurance carrier with a the same or better credit rating of A or better as the Company's current insurance carrier with respect to directors’', managers managers' and officers’ ' liability insurance a prepaid insurance policy (i.e., “"tail coverage”") which provides provide "side A, B and C directors and officers" insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries at or prior to the Closing with a policy limit and on terms in each case no less favorable (including in with respect to policy limit and scope) as the policy or policy(ies) maintained by the Company or any of its the Company's Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policypolicies, the “"D&O Tail Policy”Policies"); provided, howeverthat the premium for the D&O Tail Policies shall be borne by equally by the Purchaser, on one hand, and by the Sellers, on the other hand; and, provided, further, that in satisfying its obligations under this Section 8.02(a), no event shall the Purchaser shall not be obligated to pay premiums in excess of three aggregate cost for the D&O Tail Policies exceed three-hundred percent (300%) of the amount paid by the Company for coverage for Company's and its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the Subsidiaries' most recent annual premium for the D&O Tail Policyallocation.
(b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company and its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s 's or any of its Subsidiaries’ ' certificate or articles of incorporation or formation, bylaws or limited liability company agreement (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law. The Purchaser agrees and acknowledges that this Section 8.02 shall be binding on the Purchaser’s 's successors and assigns.
(c) If the Company or its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.02.
(d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding Proceeding or investigation (whether arising before, at or after the Closing DateClosing) is made against any individual who was an officer, director director, manager or similar functionary of the Company or its Subsidiaries at or prior to the Closing or any other party covered by directors’ ' and officers’ ' liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding Proceeding or investigation.
(e) The obligations under this Section 8.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director director, manager or similar functionary of each of the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract Contract or otherwise.
Appears in 1 contract
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or shall cause the Company Company, to purchase from an insurance carrier with a credit rating of A or better with respect to prepaid directors’, managers managers’ and officers’ liability, employment practices liability and fiduciary liability run-off insurance a prepaid insurance policy (i.e.policy(ies), “tail coverage”) which provides insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries at or prior to the Closing with a policy limit and on terms in each case no less favorable (including in with respect to policy limit coverage and scope) as the policy or policy(ies) maintained by the Company or any of its Subsidiaries immediately prior to as of the Closing for the benefit of such individuals date hereof, for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policypolicies, the “D&O Tail PolicyPolicies”); provided, however, that in satisfying its obligations under this Section 8.02(a), the Purchaser shall not be obligated to pay premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail PolicyPolicies shall be borne by fifty percent (50%) by the Purchaser and fifty percent (50%) by the Seller; and, provided, further, that in no event shall the aggregate cost for the D&O Tail Policies exceed two-hundred fifty percent (250%) of the Company’s and its Subsidiaries’ most recent annual premium allocation.
(b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company and its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles certificate of incorporation or formation, bylaws or limited liability company agreement (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law; provided, however, that the Purchaser may make changes to the Company’s or its Subsidiaries’ certificate of incorporation or formation, bylaws, or limited liability company agreement (or equivalent governing documents) so long as such changes do not adversely impact the exculpation and indemnification provisions now existing in favor of any officers, directors, managers or similar functionaries. The Purchaser agrees and acknowledges that this Section 8.02 8.03 shall be binding on the Purchaser’s successors and assigns.
(c) If the Company or Company, its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.028.03.
(d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director director, manager or similar functionary of the Company or its Subsidiaries at or prior to the Closing or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 8.03 shall continue in effect effect, solely with respect to such claim, until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The obligations under this Section 8.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 8.03 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), ) each current and former officer, director director, manager or similar functionary of each of the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
Appears in 1 contract
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or Companies (at the Purchaser's expense) shall cause the Company to purchase from an insurance carrier with a the same or better credit rating of A or better as the Acquired Companies' current insurance carrier with respect to directors’', managers managers' and officers’ ' liability insurance a prepaid insurance policy (i.e., “"tail coverage”") which provides "side A, B and C directors and officers" insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries Acquired Companies at or prior to the Closing Date with a policy limit and of $5,000,000 on terms in each case no less favorable (including in with respect to scope) as the policy or policy(ies) maintained by the Company or any of its Subsidiaries Acquired Companies immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policypolicies, the “"D&O Tail Policy”Policies"); provided, however, that in satisfying its obligations under this Section 8.02(a), the Purchaser shall not be obligated to pay premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail Policy.
(b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company and its Subsidiaries Acquired Companies to, amend, repeal or otherwise modify any provision in the any Acquired Company’s or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent governing documents) 's Organizational Documents relating to the exculpation or indemnification of any officers, directors directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries Acquired Companies shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law. The Purchaser agrees and acknowledges that this Section 8.02 6.02(b) shall be binding on the Purchaser’s Companies' successors and assigns.
(c) If the Company or its Subsidiaries Acquired Companies or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries Acquired Companies shall assume all of the obligations set forth in this Section 8.026.02.
(d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director director, manager or similar functionary of the Company or its Subsidiaries Acquired Companies at or prior to the Closing Date or any other party covered by directors’ ' and officers’ ' liability insurance, on or prior to the sixth (6th) anniversary of the ClosingClosing Date, the provisions of this Section 8.02 6.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The obligations under this Section 8.02 6.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 6.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 6.02 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director or similar functionary of the Company and its Subsidiaries Acquired Companies and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
Appears in 1 contract
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser Company shall, or shall cause the Company to purchase from an insurance carrier with a the same or better credit rating of A or better as the Company’s current insurance carrier with respect to directors’, managers managers’ and officers’ liability insurance a prepaid insurance policy (i.e., “tail coverage”) which provides provide “ directors and officers” insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Blockers, the Company or any of its Subsidiaries at or prior to the Closing with a policy limit and Effective Time on terms in each case no less favorable (including in with respect to policy limit(s) and scope) as the policy or policy(ies) maintained by the Blockers, the Company or any of its the Company’s Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policypolicies, the “D&O Tail PolicyPolicies”); provided, however, that in satisfying its obligations under this Section 8.02(a), no event shall the Purchaser shall not be obligated to pay premiums in excess of three aggregate cost for the D&O Tail Policies exceed three-hundred percent (300%) of each Blocker’s, the amount paid by Company’s and the Company for coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the Company’s Subsidiaries’ most recent annual premium for the D&O Tail Policyallocation.
(b) For a period of six (6) years after the Closing, each of the Purchaser and the Blocker Purchaser shall not, and shall not permit the Blockers, the Surviving Company and or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the Blocker’s, the Surviving Company’s or any of its Subsidiaries’ certificate or articles certificate of incorporation or formation, bylaws or limited liability company agreement (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Blockers, the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law. The Each of the Purchaser and the Blocker Purchaser agrees and acknowledges that this Section 8.02 9.02 shall be binding on the Purchaser’s its successors and assigns.
(c) If the Company or Blockers, the Surviving Company, its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Blockers, the Surviving Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.029.02.
(d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director director, manager or similar functionary of the Blockers, the Company or its Subsidiaries at or prior to the Closing Effective Time or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth (6th) anniversary of the ClosingEffective Time, the provisions of this Section 8.02 9.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The obligations under this Section 8.02 9.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 9.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 9.02 are intended for the benefit of, and will be enforceable by (as express third third-party beneficiaries), each current and former officer, director director, manager or similar functionary of each of the Blockers, the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (Roper Technologies Inc)
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser Seller shall, or shall cause the Company (with the costs and expenses to be borne 50% by Seller and 50% by Parent) to purchase from an insurance carrier with a credit rating of A or better with respect to directors’, managers and officers’ liability insurance a prepaid insurance policy (i.e., “"tail coverage”") which provides directors and officers insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries at or prior to the Closing on terms not materially less favorable, in the aggregate (including with a respect to policy limit and on terms in each case no less favorable (including in with respect to scope) as the policy or policy(ies) maintained by the Company or any of its Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policypolicies, the “"D&O Tail Policy”Policies"); provided, however, that in satisfying its obligations under this Section 8.02(a), no event shall the Purchaser shall not be obligated aggregate premium for the D&O Tail Policies exceed an amount equal to pay premiums in excess of three three-hundred percent (300%) of the amount annual premiums currently paid by the Company and its Subsidiaries for such insurance and, if such amount is insufficient for such coverage, the Seller shall, or shall cause the Company (with the costs and expenses to be borne 50% by Seller and 50% by Parent) to obtain "tail" insurance policies with the greatest coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail Policyavailable at such cost.
(b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company and its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s 's or any of its Subsidiaries’ ' certificate or articles certificate of incorporation or formation, bylaws or limited liability company agreement (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law. The Purchaser agrees and acknowledges that this Section 8.02 shall be binding on the Purchaser’s successors and assigns.
(c) If the Company or Company, its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, the Company shall use commercially reasonable efforts to make proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.02.
(d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director director, manager or similar functionary of the Company or its Subsidiaries at or prior to the Closing or any other party covered by directors’ ' and officers’ ' liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The obligations under this Section 8.02 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director director, manager or similar functionary of each of the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
Appears in 1 contract
Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or shall cause the Company to purchase from an insurance carrier with a credit rating of A or better with respect to directors’, managers and officers’ liability insurance a prepaid insurance policy (i.e., “tail coverage”) which provides insurance coverage for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries at or prior to the Closing with a policy limit and on terms in each case no less favorable (including in with respect to scope) as the policy or policy(ies) maintained by the Company or any of its Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policy, the “D&O Tail Policy”); provided, however, that in satisfying its obligations under this Section 8.02(a), the Purchaser shall not be obligated to pay premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail Policy.
(b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company and its Subsidiaries Acquired Companies to, amend, repeal or otherwise modify any provision in the Company’s or any of its Subsidiariessuch Acquired Companies’ certificate or articles of incorporation or bylaws (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors or similar functionaries (each, a “D&O Indemnified Party”) (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of agreed by the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries Acquired Companies shall continue to be entitled to and the Purchaser shall cause the Acquired Companies to provide such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law. The Purchaser agrees and acknowledges that this Section 8.02 10.05 shall be binding on the Purchaser’s successors and assigns.
(c) If the Company or its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 8.02.
(db) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director or similar functionary of any of the Company or its Subsidiaries Acquired Companies at or prior to the Closing or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 10.05 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(ec) The right to indemnification and the advancement and payment of expenses conferred in this Section 10.05 shall not be exclusive of any other right that a D&O Indemnified Party is indemnified pursuant to this Section 10.05 may have or hereafter acquire under any applicable Law, provision of this Agreement, any agreement or vote of members or disinterested directors or otherwise. The Purchaser hereby acknowledges that the D&O Indemnified Parties have or may, in the future, have certain rights to indemnification, advancement of expenses or insurance provided by other entities or organizations (collectively, the “Other Indemnitors” and, individually, an “Other Indemnitor”). The Purchaser hereby agrees that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by any Acquired Company or any Other Indemnitor, whether pursuant to any certificate of incorporation, by-laws, partnership agreement, operating agreement, indemnification agreement or other document or agreement or pursuant to this Section 10.05 (any of the foregoing is herein an “Indemnification Agreement”), the Acquired Company (a) shall at all times, be the indemnitor of first resort (i.e., its obligations to a D&O Indemnified Party shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by a D&O Indemnified Party shall be secondary), (b) shall at all times be required to advance the full amount of expenses incurred by a D&O Indemnified Party and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement (to the extent legally permitted and as required by the terms of this Agreement or any Indemnification Agreement), without regard to any rights that a D&O Indemnified Party may have against the Other Indemnitors and (c) irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims (i) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (ii) that the D&O Indemnified Party must seek expense advancement or reimbursement, or indemnification, from any Other Indemnitor before the Acquired Company must perform their expense advancement and reimbursement, and indemnification obligations, under this Agreement. The Purchaser hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of a D&O Indemnified Party with respect to any claim for which a D&O Indemnified Party has sought indemnification from the Acquired Company shall affect the foregoing, and the Other Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such D&O Indemnified Party against the Acquired Company, and the Purchaser shall indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such D&O Indemnified Party to the extent such amounts would have otherwise been payable by the Acquired Company to a D&O Indemnified Party. Each Other Indemnitor is an express third-party beneficiary of the Purchaser’s covenants and agreements in this Section 10.05.
(d) The obligations under this Section 8.02 10.05 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 10.05 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 10.05 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director or similar functionary of each of the Company and its Subsidiaries Acquired Companies and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
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Director, Manager and Officer Liability and Indemnification. (a) Prior to or simultaneously with the Closing, the Purchaser shall, or Company shall cause the Company to purchase from an insurance carrier with a the same or better credit rating of A or better as the Company’s current insurance carrier with respect to directors’, managers managers’ and officers’ liability insurance a prepaid insurance policy (i.e., “tail coverage”) ), which provides “side A, B and C directors and officers” insurance coverage coverage, for each of the individuals who were officers, directors, managers or similar functionaries of the Company or any of its Subsidiaries Group at or prior to the Closing with (each, a policy limit and “D&O Indemnified Party”) on terms in each case no less favorable (including in with respect to policy limit and scope) as the policy or policy(ies) policies maintained by the Company or any of its Subsidiaries Group immediately prior to the Closing for the benefit of such individuals for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement Transactions (such policypolicies, the “D&O Tail PolicyPolicies”); provided, however, that in satisfying its obligations under this Section 8.02(a), the Purchaser shall not be obligated to pay premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year. The Purchaser shall bear one-hundred percent (100%) of the premium for the D&O Tail Policy.
(b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit cause the Organizational Documents of each member of the Company and its Subsidiaries Group to, amend, repeal or otherwise modify any provision in the Company’s or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent governing documents) contain provisions relating to the exculpation or indemnification of any officers, directors or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent that are no less favorable than as set forth in their respective Organizational Documents as of the parties hereto that the current and former officers, directors, managers and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Lawdate hereof. The Purchaser agrees and acknowledges that this Section 8.02 shall be binding on the Purchaser’s successors and assigns.
(c) The rights conferred in this Section 8.02 shall not be exclusive of any other right that a D&O Indemnified Party may have or hereafter acquire under any applicable Law, any provision of this Agreement, any agreement or vote of managers or otherwise. Each of the Purchaser Parties hereby acknowledges that the D&O Indemnified Parties have certain rights to indemnification, advancement of expenses or insurance provided by Non-Company Affiliates that are not members of the Company Group (collectively, the “Other Indemnitors”). Each of the Purchaser Parties hereby agrees that, with respect to any indemnification or other payment obligation owed, at any time, to a D&O Indemnified Party by the Company Group or any Other Indemnitor, whether pursuant to any Organizational Document, indemnification agreement or other document or agreement or pursuant to this Section 8.02, the members of the Company Group shall at all times, be the indemnitors of first resort (i.e., their obligations to a D&O Indemnified Party shall be primary and any obligation of the Other Indemnitors to provide indemnification or other payment for the same expenses or liabilities incurred by a D&O Indemnified Party shall be secondary) to the extent the matter for which coverage is sought is covered by the D&O Tail Policies. Each of the Purchaser Parties hereby further agrees that no indemnification or other payment by the Other Indemnitors on behalf of a D&O Indemnified Party with respect to any claim for which a D&O Indemnified Party has sought indemnification from the Company Group shall affect the foregoing, and the Other Indemnitors shall have a right of contribution or be subrogated to the extent of such indemnification or other payment to all of the rights of recovery of such D&O Indemnified Party against the Company Group to the extent the matter giving rise to such indemnification or other payment obligation is covered by the D&O Tail Policies and then only to the extent of amounts actually recovered under the D&O Tail Policies. Each Other Indemnitor is an express third-party beneficiary of the Purchaser’s covenants and agreements in this Section 8.02.
(d) If the Company or its Subsidiaries Group or any of their respective its successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company and its Subsidiaries Group shall assume all of the obligations set forth in this Section 8.02.
(de) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individual who was an officer, director or similar functionary of the Company or its Subsidiaries Group at or prior to the Closing or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth (6th) anniversary of the Closing, the provisions of this Section 8.02 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(ef) The obligations under this Section 8.02 shall not be terminated or modified in such claim, in a manner as to affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such affected indemnitee or exculpee. The provisions of this Section 8.02 are intended for the benefit of, and will be enforceable by (as express third third-party beneficiaries), each current and former officer, director or similar functionary of the Company and its Subsidiaries D&O Indemnified Party and his or her heirs successors, assigns and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.
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Samples: Membership Interest Purchase Agreement (Delek US Holdings, Inc.)
