Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement). (b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4. (c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount. (d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4. (e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation. (f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (PAETEC Holding Corp.), Merger Agreement (Xeta Technologies Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Investors Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officers, employees, fiduciaries an officer or agents director of XETA Roma Financial or any Roma Subsidiary (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of its subsidiaries Investors Bancorp, which consent shall not be unreasonably withheld) of or in respect connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of actions the fact that such person is or omissions was a director, officer or employee of Roma Financial or a Roma Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Mergers and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by Roma Financial under Applicable Law, indemnify, hold harmless the applicable Regulations and advance expenses to each present under Roma Financial’s Charter and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. Investors Bancorp shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by Roma Financial under Applicable Lawapplicable Regulations and under Roma Financial’s Charter and Bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 6.08 upon learning of any Claim, shall notify Investors Bancorp (but the failure to so notify Investors Bancorp shall not relieve Investors Bancorp from any liability which it may have under this Section 6.08, except to the extent such failure materially prejudices Investors Bancorp) and shall deliver to Investors Bancorp the undertaking referred to in the previous section. In the event of any such claim, action, suit, proceeding or investigationinvestigation (whether arising before or after the Effective Time), (i) Investors Bancorp, or an insurance carrier pursuant to Section 6.08(c) below, shall have the right to assume the defense thereof and Investors Bancorp shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Investors Bancorp elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Investors Bancorp and the Indemnified Parties, the Indemnified Parties may retain counsel (including local counsel) which is reasonably satisfactory to themInvestors Bancorp, unless the Indemnified Party is provided with counsel by an insurance carrier pursuant to Section 6.08(c) below, and Investors Bancorp shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which shall be paid by the Surviving Corporation promptly after statements therefor are received and may not exceed one firm in any jurisdiction), (ii) the Surviving Corporation shall use reasonable best efforts Indemnified Parties will cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation (iii) Investors Bancorp shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); ) and provided, further, that the Surviving Corporation (iv) Investors Bancorp shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel have no obligation hereunder to the Indemnified Parties, under applicable standards of professional conduct, extent that a conflict Federal or state banking agency or a reasonable likelihood court of a conflict on any significant issue between the positions competent jurisdiction shall determine that indemnification of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any an Indemnified Party in enforcing the indemnity manner contemplated hereby is prohibited by applicable laws and other obligations provided in this Section 5.4regulations.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Investors Bancorp 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Investors Bancorp shall assume the obligations set forth in this Section 5.46.08.
(c) Investors Bancorp shall use its best efforts to maintain, or shall cause Investors Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Roma Financial (provided, that Investors Bancorp may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring at or prior to the Effective Time; provided, however, that in no event shall Investors Bancorp be required to expend pursuant to this Section 6.08(c) an amount that in the aggregate is more than 200% of the annual cost currently expended by Roma Financial with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Investors Bancorp shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, Roma Financial agrees in order for Investors Bancorp to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(d) The obligations of Investors Bancorp provided under this Section 6.08 are intended to be enforceable against Investors Bancorp directly by the Indemnified Parties and shall be binding on all respective successors and permitted assigns of Investors Bancorp.
(e) In the event that the Surviving Corporation should fail, at any time from and after At the Effective Time, Investors Bancorp will assume all obligations of Roma Financial to comply provide indemnification for former officers and directors of Sterling Banks, Inc. and Sterling Bank in accordance with any of and subject to the foregoing obligations limitations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent 6.4 of the obligations Agreement and Plan of the Surviving CorporationMerger, dated as of March 17, 2010, among Sterling Banks, Inc., Sterling Bank, Roma Financial Corporation and Roma Bank.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Investors Bancorp Inc), Merger Agreement (Roma Financial Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company and its Subsidiaries (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company Charter Documents, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 6.08 of the Company Disclosure Letter, shall not be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim made during such period, until the rights thereunder final disposition of individuals who at any time from and such proceeding or claim.
(b) For six years after the date Effective Time, to the fullest extent permitted under applicable Law, Parent and the Surviving Corporation (the “Indemnifying Parties”) shall indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, reasonable expenses, judgments and fines to the extent arising out of this Agreement and to and including actions or omissions in their capacity as a director or officer of the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Company or any of its subsidiaries in respect of actions or omissions Subsidiaries occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
) and, subject to clause (bc) From and after the Effective Timebelow, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance shall reimburse each Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Corporation’s receipt of the final disposition of any an undertaking by such action or proceeding to each Indemnified Party to the fullest extent permitted repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under Applicable applicable Law.
(c) Any Indemnified Party wishing to claim indemnification under Section 6.08(b), upon receipt from learning of any applicable Legal Action, shall promptly notify Parent thereof, but the failure to so notify shall not relieve the Indemnifying Parties of any liability they may have to such Indemnified Party Party, except to whom expenses are advanced of an undertaking to repay the extent such advances as required under Applicable Law)failure materially prejudices the Indemnifying Parties. In the event of any such claim, action, suit, proceeding or investigationLegal Proceeding arising after the Effective Time, (i) the indemnifying Parties shall have the right to assume the defense thereof, with counsel reasonably acceptable to the Indemnified Parties, and the Indemnifying Parties shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Indemnifying Parties elect not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between either of the Indemnifying Parties and the Indemnified Parties, or between the Indemnified Parties, the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, and the Indemnifying Parties shall pay all reasonable fees and expenses of which shall be paid by such counsel for the Surviving Corporation Indemnified Parties promptly after as statements therefor are received and (ii) received, subject to the Surviving Corporation shall use reasonable best efforts Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in the vigorous defense advance if it is ultimately determined in a final and non-appealable judgment of any a court of competent jurisdiction that such matterIndemnified Party is not entitled to be indemnified under applicable Law; provided, however, that the Surviving Corporation Indemnifying Parties shall be obligated pursuant to this clause (c) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest; provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) the Indemnifying Parties shall not be liable for any settlement effected without its their prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned)consent; and provided, further, that the Surviving Corporation Indemnifying Parties shall not be obligated pursuant have any obligation hereunder to this subsection (b) to pay the fees any Indemnified Party if and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the extent that a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, Party in the event that any claim for indemnification manner contemplated hereby is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. prohibited by applicable Law.
(d) The Surviving Corporation shall, and Parent shall pay all reasonable expensescause the Surviving Corporation to, including attorneys’ fees, that may be incurred by any Indemnified Party (i) maintain in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and effect for a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect the current policies of directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time, a true and correct copy of which has been made available by the Company to Parent prior to the date hereof (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of the Company and directorsits Subsidiaries when compared to the insurance maintained by the Company as of the date hereof), so long or (ii) obtain as such substitution does of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not result less advantageous to the directors and officers of the Company and its Subsidiaries, in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective TimeTime (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event shall will Parent or the Surviving Corporation be required required, and the Company shall not be permitted, to expend for such policies pursuant to this Section 5.4(c) more than 6.08 an annualized premium amount per year equal to 300in excess of 250% of current the annual premiums currently paid by XETA the Company for such insurance and, in if the event the cost annual premiums of such insurance coverage shall exceed that such amount, Parent or the Surviving Corporation shall purchase obtain a substantially similar policy (from an insurance carrier with the same or better rating as much the Company’s current directors’ and officers’ liability insurance carrier) with the greatest coverage as possible available for a cost to exceeding such amount.
(de) The obligations of Parent and the Surviving Corporation under this Section 6.08 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.08 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08, each of whom may enforce the provisions of this Section 6.08).
(f) In the event Parent, the Surviving Corporation 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In 6.08. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the event Company or its officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from indemnification and after the Effective Time, to comply with any of the foregoing obligations set forth other commitments provided for in this Section 5.46.08 are not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (MGC DIAGNOSTICS Corp), Merger Agreement (MGC Parent LLC)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationany threatened or actual Proceeding in which any Person who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who has been at any time from and after prior to the date Closing, a director or officer of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Company or any of its subsidiaries Subsidiaries (the “D/O Indemnitees”) is, or is threatened to be, made a party thereto based in respect whole or in part on the fact that such Person is or was a director or officer of actions the Company or omissions occurring at any of its Subsidiaries, whether in any case asserted or prior to arising before, on or after the Effective Time (including, without limitationClosing, the matters contemplated by this Agreement).
(b) From Company and after the Effective Time, the Surviving Corporation its Subsidiaries shall, to the fullest extent permitted under Applicable by Law, indemnifyfulfill and honor in all respects the obligations of the Company pursuant to any indemnification and exculpation agreements disclosed in Schedule 3.26 and any indemnification and exculpation provisions under the charter documents or the Company or its applicable Subsidiary, hold harmless as the case may be, as in effect on the date hereof; provided, that notwithstanding anything herein or anywhere else to the contrary, no D/O Indemnitee shall be entitled to any indemnity from the Company or any affiliate of the Company as a result of any circumstance for which any Seller or Founder is obligated to indemnify any Purchaser Indemnified Party hereunder.
(b) A D/O Indemnitee shall notify the Company of the existence of a Proceeding for which such D/O Indemnitee is entitled to indemnification hereunder as promptly as reasonably practicable after such D/O Indemnitee learns of such Proceeding; provided, that the failure to so notify shall not affect the obligations of the Company and advance expenses its Subsidiaries under this Section 7.11 except to the extent such failure to notify actually prejudices the Company and its Subsidiaries. The Company, at its expense, shall have the right to control the defense of the Proceeding with counsel selected by the Company and reasonably acceptable to the D/O Indemnitee. The D/O Indemnitee and the Company and its Subsidiaries shall cooperate fully with each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid other in connection with the defense of any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition Proceeding. No settlement of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties Proceeding may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid made by the Surviving Corporation promptly after statements therefor are received and (ii) Company or any Subsidiary without the Surviving Corporation shall use reasonable best efforts in D/O Indemnitee’s consent, except for a settlement which requires no more than a monetary payment for which the vigorous defense D/O Indemnitee is fully indemnified. No settlement of any a Proceeding may be made by a D/O Indemnitee without the consent of the Company, unless such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be is unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the The provisions of this subsection (e) Section 7.11 are intended to be a primary obligation of Parent and not merely a guarantee by Parent of for the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to the enforceable by, each D/O Indemnitee and such D/O Indemnitee’s estate, heirs and representatives, and nothing herein shall affect any indemnification rights of third-party beneficiaries underthat any D/O Indemnitee or such D/O Indemnitee’s estate, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party heirs and representatives may have under the charter or bylaws organizational documents of XETAthe Company and the Subsidiaries, under Oklahoma any Contract, applicable Law or otherwise.
Appears in 2 contracts
Samples: Stock Purchase Agreement (FriendFinder Networks Inc.), Stock Purchase Agreement (FriendFinder Networks Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationWithout limiting any additional rights that any director or officer may have under any agreement or Company Benefit Plan, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely through the rights thereunder sixth anniversary of individuals who at any time from and after the date of this Agreement and to and including on which the Effective Time were directorsoccurs, officersParent shall cause the Surviving Corporation to indemnify and hold harmless each present (as of the Effective Time) and former director and officer of the Company and its Subsidiaries (the “D&O Indemnified Parties”) against all claims, employeeslosses, fiduciaries liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements incurred in connection with any Proceeding arising out of or agents pertaining to the fact that such D&O Indemnified Party is or was an officer or director of XETA the Company or any of its subsidiaries in respect of actions or omissions occurring Subsidiaries at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, including with respect to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of and the Transactionstransactions and actions contemplated hereby), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable applicable Law (and shall pay any expenses in advance the Certificate of Incorporation or the final disposition of any such action or proceeding to each Bylaws as at the date hereof; provided that no D&O Indemnified Party shall be entitled to the fullest extent permitted under Applicable Law, upon receipt from the indemnification for any act or omission which constitutes fraud or willful misconduct by such D&O Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)Party. In the event of any such claim, action, suit, proceeding or investigationProceeding, (iA) the each D&O Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which Party shall be paid by entitled to advancement of expenses incurred in the defense of any Proceeding from the Surviving Corporation promptly after statements therefor are received to the fullest extent permitted under applicable Law and the Certificate of Incorporation and the Bylaws as of the date hereof provided that such D&O Indemnified Party first provides a written undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification and (iiB) the Surviving Corporation shall use reasonable best efforts not settle, compromise or consent to the entry of any judgment in any Proceeding for which indemnification has been sought by such D&O Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all liability arising out of such Proceeding or such D&O Indemnified Party otherwise consents.
(b) Parent and Merger Sub agree that all rights to indemnification and exculpation from liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the D&O Indemnified Parties as provided in the vigorous defense Certificate of Incorporation, the Bylaws or any indemnification Contract between such directors or officers and the Company (in each case, as in effect on, and, in the case of any indemnification Contracts, to the extent made available to Parent prior to, the date of this Agreement) shall survive the Merger and shall continue in full force and effect. For a period of six (6) years from the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification and advancement of expenses equivalent to the provisions of the Certificate of Incorporation and Bylaws as in effect immediately prior to the Effective Time with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such matterprovisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Parties; provided, however, that all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim. From and after the Effective Time, Parent shall guarantee and stand surety for, and shall cause the Surviving Corporation to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.8(b).
(c) Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of or after the Effective Time to, purchase a six (6)-year prepaid “tail” policy, with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies of directors’ and officers’ liability insurance and fiduciary liability insurance, with respect to matters arising on or before the Effective Time (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation, and no other party shall have any further obligation to purchase or pay for insurance hereunder; provided, however, that the Surviving Corporation Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldpay, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, thatpay, in the event that any claim for indemnification is asserted or made aggregate, in excess of three hundred percent (300%) of the last annual premium paid by the Company prior to the Effective Time or within such six-year period, all rights to indemnification date of this Agreement in respect of such claim shall continue until “tail” policy. If the final disposition of such claim. The Company or the Surviving Corporation shall pay all reasonable expensesfor any reason fails to obtain such “tail” insurance policy prior to, including attorneys’ feesas of or after the Effective Time, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and Parent shall, for a period of six (6) years after from the Effective Time, cause the Surviving Corporation shall to maintain in effect the current policies of directors’ and officers’ liability insurance policies and fiduciary liability insurance maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) Company with respect to matters occurring prior to arising on or before the Effective Time; provided, however, that in no event after the Effective Time, Parent shall the Surviving Corporation not be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance andpay, in the event aggregate, in excess of three hundred percent (300%) of the cost last annual premium paid by the Company prior to the date of this Agreement in respect of the coverage required to be obtained pursuant hereto, but in such coverage shall exceed that amount, the Surviving Corporation case shall purchase as much coverage as possible reasonably practicable for such amount.
(d) The covenants contained in this Section 5.8 are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and shall not be deemed exclusive of any other rights to which any such Person is entitled, whether pursuant to Law, contract or otherwise.
(e) In the event that Parent or the Surviving Corporation 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 substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and or assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume the obligations set forth in this Section 5.45.8.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Welbilt, Inc.), Merger Agreement (Middleby Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Certificate of incorporation and bylaws Incorporation of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate Certificate of incorporation and bylaws of XETA as Incorporation of the date of this AgreementCompany, which provisions shall not be amended, repealed or otherwise modified for a period of six ten years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (includingCompany, without limitation, the matters contemplated unless such modification shall be required by this Agreement)law.
(b) From The Company shall, to the fullest extent permitted under applicable law and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable law, indemnifyindemnify and hold harmless, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries the Company (collectively, the “"Indemnified Parties”") against all costs and expenses (including attorneys’ ' fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in settlement in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions)agent, whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six ten years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties Company or the Surviving Corporation, as the case may retain counsel (including local counsel) satisfactory to thembe, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Company or the Surviving Corporation Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall use reasonable best efforts cooperate in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that neither the Surviving Company nor the surviving Corporation shall not be obligated pursuant to this subsection (bSection 4.03(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any extent that two or more Indemnified Parties, in which case of such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at shall have conflicting interests in the expense outcome of the Surviving Corporationsuch action; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such sixten-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and The Surviving Corporation shall use its best efforts to maintain in effect for a period of six years after from the Effective Time, the Surviving Corporation shall maintain in effect if available, the current directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company (provided, provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that which are no not materially less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coveragefavorable) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c4.03(c): (i) for period beginning at the Effective Time and ending three years thereafter, more than an amount per year equal to 300% of current annual premiums (the "Current Annual Premiums") paid by XETA the Company for such insurance and, (which premiums the Company represents and warrants to be approximately $75,000 in the event the cost of such coverage shall exceed that amountaggregate), the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that for the successors and assigns period beginning on the third anniversary of the Surviving Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should failEffective Time and ending three years thereafter, at any time from and after the Effective Time, more than an amount per year equal to comply with any 200% of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.Current Annual Premiums..
Appears in 2 contracts
Samples: Merger Agreement (PDK Labs Inc), Merger Agreement (PDK Acquisition Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present and former officer, director or employee of the Company (the "Indemnified Parties"), against all claims, losses, liabilities, damages, judgments, fines, reasonable fees, reasonable costs or reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of the fact that the Indemnified Party is or was a director, officer or employee or the Company and pertaining to matters existing or occurring at or prior to the Effective Time (including, without limitation, this Agreement and the 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; provided, that no Indemnified Party may settle any such claim without the prior approval of Parent or the Surviving Corporation (such consent not to be unreasonably withheld). Each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation; provided, that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. Without limiting the foregoing, in the event that any claim, action, suit, proceeding or investigation is brought against an Indemnified Party (whether arising before or after the Effective Time), the Indemnified Parties as a group may retain one counsel (plus appropriate local counsel) satisfactory to Parent or the Surviving Corporation.
(b) The certificate of incorporation and bylaws By-Laws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as Article VIII of the date By-laws of this Agreementthe Company, which provisions shall not be amended, repealed or otherwise modified for a period of six three years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries officers or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any employees of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4Company.
(c) From and for a period of six years after the Effective TimeParent shall, or shall cause the Surviving Corporation shall maintain to maintain, at no expense to the beneficiaries, in effect for six years from the Effective Time the current policies of the directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company (provided, provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that which are no not materially less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverageadvantageous) with respect to matters occurring at or prior to the Effective TimeTime to the extent available; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300in excess of 150% of current annual premiums paid by XETA for the Company (which the Company represents and warrants to be not more than $140,000) to maintain or procure insurance coverage pursuant hereto; and provided, further, that if the annual premiums of such insurance andcoverage would exceed 150% of current annual premiums, in the event the cost of such coverage shall exceed that amount, Parent or the Surviving Corporation shall purchase as much obtain a policy with the greatest coverage as possible available for such amounta cost not exceeding 150% of current annual premiums. In the event any claim is made against present or former directors, officers or employees of the Company (the "Indemnitees") that is covered or potentially covered by insurance, none of the Surviving Corporation, Parent or any Indemnitee shall do anything that would forfeit, jeopardize, restrict or limit the insurance coverage available for that claim until the final disposition thereof.
(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 Party, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 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 Parties 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 Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of its successors their respective successor 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 substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 6.7, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent shall assume succeed to the obligations set forth in this Section 5.46.7.
(eg) In Parent and Purchaser acknowledge that the event Company is a party to indemnification agreements (the "Indemnification Agreements") with each of its current directors as set forth on Schedule 3.8 of the Disclosure Schedule. Parent and Purchaser agree that all rights in favor of such persons as set forth in the Indemnification Agreements shall survive the Merger and shall continue in full force and effect and without modification (except for such modifications which would enlarge the rights) after the Effective Time in accordance with the provisions of such Indemnification Agreements, and Parent shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply fully with any of the foregoing its obligations set forth hereunder and thereunder. The parties acknowledge that nothing in this Section 5.4, for 6.7 shall limit any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention rights in favor of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have Parties under the charter or bylaws of XETA, under Oklahoma Law or otherwiseIndemnification Agreements.
Appears in 2 contracts
Samples: Merger Agreement (L 3 Communications Holdings Inc), Merger Agreement (Microdyne Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws limited liability company agreement of the Surviving Corporation Company and the organizational documents of each of its subsidiaries Subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA the Company as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA the Company or any of its subsidiaries Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification is required by law.
(b) From and after the Effective Time, the Surviving Corporation Company shall, to the fullest extent permitted under Applicable Lawapplicable law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA the Company and each of its subsidiaries Subsidiary (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactionstransactions contemplated hereby), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law applicable law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Lawapplicable law, upon receipt from the Indemnified Party to whom expenses are advanced of an any undertaking to repay such advances as required under Applicable Lawapplicable law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation Company, promptly after statements therefor are received and (ii) the Surviving Corporation Company shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, provided further that the Surviving Corporation Company shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving CorporationCompany; and provided, further, provided further that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation Company shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall Company shall, for six years from the Effective Time, maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA the Company (provided, provided that the Surviving Corporation Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that which are no less advantageous to such officers and directors, directors so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation Company be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300100% of current annual premiums paid by XETA the Company for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation Company shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation Company shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation Company should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation Company may have or claim (except as would be prohibited by Applicable applicable Delaware Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA the Company and its subsidiaries Subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving CorporationCompany.
(f) The obligations of the Company, Parent and and/or the Surviving Corporation Company under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETAthe Company, under Oklahoma the Delaware Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Plains Exploration & Production Co), Merger Agreement (Pogo Producing Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation 7.9.1. PFS shall indemnify, defend and bylaws of the Surviving Corporation and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of or who has been at any time before the date hereof or who becomes before the Effective Time, an officer, director or employee of this AgreementSBBX or an SBBX Subsidiary (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of PFS, which provisions consent shall not be amendedunreasonably withheld) of or in connection with any claim, repealed action, suit, proceeding or otherwise modified for investigation, whether civil, criminal, or administrative (each a period “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of six years from the Effective Time in fact that such person is or was a director, officer or employee of SBBX or an SBBX Subsidiary if such Claim pertains to any manner that would affect adversely the rights thereunder matter of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorsfact arising, officers, employees, fiduciaries existing or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by SBBX under Applicable Law, indemnify, hold harmless the NJBCA and advance expenses to each present under SBBX’s Certificate of Incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. PFS shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by SBBX under Applicable Lawthe NJBCA, and under SBBX’s Certificate of Incorporation and Bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if such officer, director or employee shall be adjudicated or determined to be not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.1 upon learning of any Claim, shall notify PFS (but the failure so to notify PFS shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure materially prejudices PFS) and shall deliver to PFS the undertaking referred to in the previous sentence.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either PFS 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation PFS shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. Either Provident Bank or PFS shall maintain, at any time from and after in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of SBBX (provided, that PFS or Provident Bank may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall PFS or Provident Bank be required to expend in the aggregate pursuant to this Section 7.9.3 more than 200% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by SBBX with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, PFS or Provident Bank shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, SBBX agrees in order for PFS or Provident Bank to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.9.4. The obligations of Parent Provident Bank and the Surviving Corporation PFS provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Provident Bank and agent to whom this Section 5.4 applies without PFS directly by the consent of each affected director, officer, employee, fiduciary Indemnified Parties and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwisePFS and Provident Bank.
Appears in 2 contracts
Samples: Merger Agreement (Provident Financial Services Inc), Merger Agreement (Sb One Bancorp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the Company Charter, the Company Bylaws or this Agreement or, if applicable, similar organizational documents or agreements of incorporation and bylaws any of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationSubsidiaries, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement Effective Date, Parent and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, : (i) indemnify and hold harmless and advance expenses to each present and former person who is at the date hereof or during the period from the date hereof through the Effective Date serving as a director, officer, employeetrustee, or fiduciary and agent of XETA and each the Company or its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (within the meaning of its subsidiaries Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) against all costs to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, in connection with any Claim and expenses (including attorneys’ fees), any judgments, fines, losses, claims, damages, inquiries, liabilities penalties and settlement amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any threatened request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or actual claimpermitted by applicable law, actionas now or hereafter in effect, suitany Expenses incurred in defending, proceeding serving as a witness with respect to or investigation (whether arising otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security. The indemnification and advancement obligations of Parent and Surviving Corporation pursuant to this Section 7.06(a) shall extend to acts or omissions occurring at or before or after the Effective TimeTime and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall continue as to a person who continues to be or has ceased to be a
(a) (x) the term “Claim” means any threatened, asserted, pending or completed Action, suit or proceeding, or any inquiry or investigation, whether instituted by any party hereto, any Governmental Authority or any other party, that any Indemnified Party in good faith believes might lead to the institution of any such Action, suit or proceeding, whether civil, criminal, administrative administrative, investigative or investigativeother, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to any action matters that relate to such Indemnified Party’s duties or omission in their capacity service as a director, officer, trustee, employee, agent, or fiduciary of the Company, any of its Subsidiaries, or agent any employee benefit plan (within the meaning of Section 3(3) of ERISA) maintained by any of the foregoing or any other person at or prior to the Effective Time at the request of the Company or any of its Subsidiaries; and (y) the term “Expenses” means reasonable attorneys’ fees and all other reasonable costs, expenses and obligations (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneysexperts’ fees, that may travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be incurred by a witness in or participate in, any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and Claim for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend which indemnification is authorized pursuant to this Section 5.4(c) more than 7.06(a), including any Action relating to a claim for indemnification or advancement brought by an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Indemnified Party. Neither Parent nor Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation settle, compromise 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights entry of third-party beneficiaries underany judgment in any actual or threatened claim, this Section 5.4). The rights demand, Action, suit, proceeding, inquiry or investigation in respect of each which indemnification has been or could be sought by such Indemnified Party hereunder shall be in addition to any other rights unless such settlement, compromise or judgment includes an unconditional release of such Indemnified Party may have under the charter from all liability arising out of such claim, demand, Action, suit, proceeding, inquiry or bylaws of XETA, under Oklahoma Law investigation or otherwisesuch Indemnified Party otherwise consents thereto.
Appears in 2 contracts
Samples: Merger Agreement (New Plan Excel Realty Trust Inc), Merger Agreement (Centro Properties LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from after the Effective Time Time, Acquiror shall not cause or permit any amendment, repeal or other modification of the provisions of (i) Article IV, Section 14 of the by-laws of the Surviving Corporation, as set forth in EXHIBIT H attached hereto, or (ii) Article Eighth of the certificate of incorporation of the Surviving Corporation, in either case in any manner that would adversely affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and prior to and including the Effective Time were directors, officers, employees, fiduciaries officers or agents employees of XETA Tenneco or any of its subsidiaries or Affiliates or who are otherwise entitled to indemnification pursuant to such provisions in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters transactions contemplated by this Agreement and the Distribution Agreement), unless such modification is required by the DGCL or applicable federal law, and then only to the extent of such applicable requirements of the DGCL or federal law. To the extent the Surviving Corporation is unable for any reason to fulfill its obligations under the bylaw provisions set forth in EXHIBIT H attached hereto, Acquiror agrees to pay, perform and discharge all such obligations.
(b) From Prior to the Effective Time, Tenneco shall, and from and after the Effective Time, Time the Acquiror and the Surviving Corporation jointly and severally shall, to the fullest extent permitted under Applicable Law, indemnify, defend and hold harmless and advance expenses each Person who is now, has been at any time prior to each present and former director, the date of this Agreement or who becomes prior to Effective Time an officer, employee, fiduciary and agent director or employee of XETA and each Tenneco or any of its subsidiaries (collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") against all costs and expenses (including attorneys’ fees)losses, judgments, fines, lossesexpenses, claims, damages, inquiries, liabilities and settlement or amounts that are paid in connection settlement of, with the approval of the 22
(c) Without limiting the generality of the foregoing, in the event any threatened or actual claim, action, suit, proceeding or investigation Claim is brought against any Indemnified Party (whether arising before or after the Effective Time)): (i) the Indemnified Party may retain counsel satisfactory to him with the consent of Tenneco (or the consent of Acquiror and the Surviving Corporation after the Effective Time) which consent of Tenneco (or, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted Acquiror and the Surviving Corporation) with respect to such counsel retained by the Indemnified Party may not be unreasonably withheld or claimed prior todelayed; (ii) Tenneco (or, at or after the Effective Time, Acquiror and the Surviving Corporation) shall pay all reasonable fees and expenses of such counsel for a period of six years the Indemnified Party promptly as statements therefor are received; and (iii) Tenneco (or, after the Effective Time, in each case to the fullest extent permitted under Applicable Law (Acquiror and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (iiCorporation) the Surviving Corporation shall will use all reasonable best efforts to assist in the vigorous defense of any such matter; provided, howeverprovided that none of Tenneco, that Acquiror or the Surviving Corporation shall not be liable for any settlement of any Claim effected without its written consent (consent, which consent consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this SECTION 6.4, delayed upon learning of any such Claim, shall notify Tenneco (or, after the Effective Time, Acquiror and the Surviving Corporation) (but any failure so to notify shall not relieve Tenneco, Acquiror or conditioned); and provided, further, that the Surviving Corporation from any liability which it may have under this SECTION 6.4, except to the extent such failure materially prejudices such party), and shall not be obligated pursuant deliver to this subsection Tenneco (bor, after the Effective Time, Acquiror and the Surviving Corporation) to pay any undertaking required by Section 145(e) of the fees and expenses of more than one counsel (plus appropriate local counsel) for all DGCL or other applicable law. The Indemnified Parties in any single action as a group may retain only one law firm to represent them with respect to each such Claim unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel . (including local counseld) as may be required to avoid any such conflict (i) MAINTENANCE OF D&O POLICIES. On or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year periodClosing Date, all rights to indemnification in respect Tenneco shall provide Acquiror with copies and a schedule of such claim those Directors' and Officers' Liability Insurance Policies which Tenneco shall continue until enter into effective as of the final disposition of such claimClosing Date (the "D&O POLICIES"). The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for For a period of six seven years after the Effective Time, Acquiror and the Surviving Corporation shall maintain cause to be maintained in full force and effect the current directors’ D&O Policies. Acquiror and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase be jointly and severally responsible for payment of all premiums due as much coverage respects the D&O Policies and shall take all other actions necessary or appropriate to maintain the D&O Policies in full force and effect (other than to the extent the available limit of liability of any such D&O Policy may be reduced or exhausted solely as possible the result of the payment of claims thereunder) for the agreed term of seven years after the Effective Time. If at any time an insurance carrier under any of the D&O Policies becomes unable or unwilling, or it becomes probable that such amount.
insurance carrier will be unable or unwilling (d) In which determination shall be made in the event reasonable discretion of the Surviving Corporation or Industrial Subsidiary), to fulfill any of its successors obligations under any D&O Policy, whether due to such insurance carrier's dissolution, bankruptcy, insolvency or assigns (i) consolidates with or merges into any other person otherwise, then Acquiror and shall not be the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from obtain a directors' and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.' liability 23
Appears in 2 contracts
Samples: Agreement and Plan of Merger (El Paso Natural Gas Co), Agreement and Plan of Merger (Newport News Shipbuilding Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.9.1. For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Investors shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of ABNJ or a ABNJ Subsidiary (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA Investors, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions ABNJ or omissions a ABNJ Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, Time (the Surviving Corporation shall“Indemnified Liabilities”), to the fullest extent permitted that such Indemnified Parties were entitled to indemnification under Applicable Law, indemnify, hold harmless applicable New Jersey and advance expenses federal law and under ABNJ’s Certificate of Incorporation and Bylaws. This right of indemnification shall include the right to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts be paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if it shall be adjudicated or determined that such Indemnified Party is not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.1 upon learning of any Claim, shall notify Investors (but the failure so to notify Investors shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure materially prejudices Investors) and shall deliver to Investors the undertaking referred to in the previous sentence. A-43
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either Investors 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Investors shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. Investors shall maintain, at any time from and after or shall cause Investors Savings Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of ABNJ (provided, that Investors may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall Investors be required to expend pursuant to this Section 7.9.3 more than 175% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by ABNJ with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Investors shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, ABNJ agrees in order for Investors to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.9.4. The obligations of Parent and the Surviving Corporation Investors provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Investors directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseInvestors.
Appears in 2 contracts
Samples: Merger Agreement (American Bancorp of New Jersey Inc), Merger Agreement (Investors Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from following the Effective Time in (provided, that such period shall be extended with respect to all unresolved claims for indemnification by any manner that would affect adversely Indemnified Party as of the rights thereunder sixth anniversary of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorsuntil such claims are finally resolved), officersParent and the Surviving Corporation shall cause all rights to indemnification, employeesadvancement of expenses and exculpation now existing in favor of any present or former director, fiduciaries officer or agents employee of XETA the Company or any of its subsidiaries in respect Subsidiaries and the fiduciaries of actions or omissions occurring at or prior to the Effective Time any Company Employee Benefits (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against as provided in (i) the Organizational Documents of the Company, or (ii) agreements between an Indemnified Party and the Company or one of its Subsidiaries to survive the Merger and to continue in full force and effect for a period of not less than six years after the Effective Time or, if longer, for such period as is set forth in any applicable agreement with an Indemnified Party in effect on the date of this Agreement.
(b) For a period of six years following the Effective Time (provided, that such period shall be extended with respect to all unresolved claims for indemnification by any Indemnified Party as of the sixth anniversary of the Effective Time until such claims are finally resolved), Parent and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless all Indemnified Parties to the fullest extent permitted by applicable Law with respect to all acts and omissions arising out of or relating to their services as directors, officers or employees of the Company, its Subsidiaries or another Person, if such Indemnified Party is or was serving as a director, officer or employee of such other Person at the request of the Company, or fiduciaries of Company Employee Benefits, whether asserted or claimed at, after or before the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this Agreement or otherwise). If any Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to indemnification hereunder, then Parent and the Surviving Corporation shall, jointly and severally, advance as incurred any costs and or expenses (including attorneys’ feesreasonable legal fees and disbursements), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened damages or actual claim, action, suit, proceeding or investigation Liabilities (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, “Damages”) arising out of or pertaining incurred in connection with such Legal Action, subject to any action Parent’s or omission in their capacity the Surviving Corporation’s, as a directorapplicable, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking by or on behalf of such Indemnified Party, if required by the FBCA, to repay such advances as required Damages if it is ultimately determined under Applicable Law)applicable Law that such Indemnified Party is not entitled to be indemnified. In the event of any such claim, action, suit, proceeding or investigationLegal Action, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees each of Parent and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received shall cooperate with the Indemnified Party in the defense of any such Legal Action and (ii) neither Parent nor the Surviving Corporation shall use reasonable best efforts in settle, compromise or consent to the vigorous defense entry of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties judgment in any single action unless there is, as determined by counsel Legal Action pending or threatened in writing to the which an Indemnified Parties, under applicable standards of professional conduct, Party is a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel party (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of which indemnification could be sought by such claim shall continue until the final disposition Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4from all liability arising out of such Legal Action.
(c) From Parent and the Surviving Corporation shall, jointly and severally, maintain in effect for a period of at least six years after the Effective Time, the Surviving Corporation shall maintain in effect Time the current policies of directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor Company or policies of at least the same coverage and amounts containing terms and conditions that which are no less advantageous with respect to such officers claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the negotiation and directors, execution of this Agreement and the consummation of the transactions contemplated by this Agreement) so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 250% of the renewal premium paid or payable by the Company in connection with its June 2018 renewal (such substitution does not result 250% amount being the “Maximum Premium”). If Parent and the Surviving Corporation are unable to obtain the insurance described in gaps the prior sentence for an amount less than or lapses equal to the Maximum Premium, then Parent and the Surviving Corporation shall, jointly and severally, instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in coverage) with respect to matters occurring prior to lieu of the arrangements contemplated by this Section 5.7(c), before the Effective Time; provided, howeverthe Company shall be entitled to purchase, that and at the written request of Parent shall purchase, a “tail” directors’ and officers’ liability insurance policy covering the matters described in no event this Section 5.7(c) and, if the Company purchases such a policy before the Effective Time, then Parent and the Surviving Corporation’s obligations under this Section 5.7(c) shall be satisfied so long as Parent and the Surviving Corporation cause such policy to be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% maintained in effect for a period of current annual premiums paid by XETA for such insurance and, in six years following the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountEffective Time.
(d) The covenants contained in this Section 5.7 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(e) In the event that Parent or the Surviving Corporation 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 corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision Parent and the Surviving Corporation shall be made take all necessary action so that the successors and or assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 5.45.7.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Feldenkreis George), Merger Agreement (Perry Ellis International, Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Company, and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall(each, an "Indemnifying Party"), shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the fullest extent permitted under Applicable Lawdate hereof or who becomes prior to the Effective Time, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each the Company or any of its subsidiaries Subsidiaries (collectively, the “"Indemnified Parties”") against (i) all losses, claims, damages, costs and expenses (including attorneys’ ' fees), judgmentsliabilities, fines, losses, claims, damages, inquiries, liabilities judgments and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, for or arises in whole or in part out of, the fact that such Indemnified Party is or was a period director or officer of six years after the Company or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Effective TimeTime ("Indemnified Liabilities"), and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest full extent a corporation is permitted under Applicable Law applicable law to indemnify its own directors or officers, as the case may be; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (and shall whether arising prior to or after the Effective Time), (w) the Indemnifying Parties will pay any expenses in advance of the final disposition of any such claim, action suit, proceeding or proceeding investigation to each Indemnified Party to the fullest full extent permitted under Applicable Law, upon receipt from by applicable law; provided that the Indemnified Party Person to whom expenses are advanced of an provides any undertaking required by applicable law to repay such advances advance if it is ultimately determined that such Person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Indemnifying Parties; (y) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to the final sentence of this paragraph) promptly as required statements therefor are received; and (z) the Indemnifying Parties shall use all commercially reasonable efforts to assist in the vigorous defense of any such matter. Any Indemnified Party wishing to claim indemnification under Applicable Law). In the event this Section, upon learning of any such claim, action, suit, proceeding or investigation, (i) shall notify the Indemnifying Parties, but the failure so to notify an Indemnifying Party shall not relieve it from any liability which it may have under this paragraph except to the extent such failure irreparably prejudices such party. The Indemnified Parties as a group may retain counsel (including local counsel) satisfactory only one law firm to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any represent them with respect to each such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action matter unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(b) Except to the extent required by law, Parent will not take any action so as to amend, modify or repeal the provisions for indemnification of directors or officers contained in which case such additional counsel the certificates or articles of incorporation or bylaws (including local counselor other comparable charter documents) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; Corporation and provided, further, that, its Subsidiaries (which as of the Effective Time shall be no more favorable to such individuals than those maintained by the Company and its Subsidiaries on the date hereof) in such a manner as would adversely affect the event that rights of any claim for indemnification is asserted individual who shall have served as a director or made officer of the Company or any of its Subsidiaries prior to the Effective Time or within to be indemnified by such six-year period, all rights to indemnification corporations in respect of their serving in such claim shall continue until capacities prior to the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4Effective Time.
(c) From Parent and for a period of six years after the Effective Time, the Surviving Corporation shall maintain shall, until the sixth anniversary of the Effective Time and for so long thereafter as any claim asserted prior to such date has not been fully adjudicated by a court of competent jurisdiction, cause to be maintained in effect effect, to the current extent available, the policies of directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company and its Subsidiaries as of the date hereof (provided, that the Surviving Corporation may substitute therefor or policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coveragethe insured parties) with respect to matters occurring claims arising from facts or events that occurred on or prior to the Effective Time; provided, however, provided that in no event shall Parent or the Surviving Corporation be required obligated to expend in order to maintain or procure insurance coverage pursuant to this Section 5.4(c) more than an paragraph any amount per year equal to 300% annum in excess of current annual two hundred percent (200%) of the aggregate premiums paid payable by XETA the Company and its Subsidiaries in 1996 (on an annualized basis) for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountpurpose.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the The provisions of this subsection (e) Section are intended to be a primary obligation of Parent and not merely a guarantee by Parent of for the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to the rights of third-party beneficiaries undershall be enforceable by, this Section 5.4). The rights of each Indemnified Party hereunder and each party entitled to insurance coverage under paragraph (c) above, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights such an Indemnified Party may have under the charter certificate or articles of incorporation or bylaws of XETAthe Surviving Corporation or any of its Subsidiaries, under Oklahoma Law the DGCL or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Kash N Karry Food Stores Inc), Merger Agreement (Food Lion Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Buyer agree that all rights to the persons covered thereby with respect to exculpation, indemnification and exculpation from liabilities, including advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreementexpenses, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions acts or omissions occurring at or prior to the Effective Time Closing now existing in favor of the present (includingas of the Closing) or former directors or officers of the Company (each, without limitationtogether with such Person’s heirs, the matters contemplated by this Agreement).
(b) From and after the Effective Timeexecutors, the Surviving Corporation shallor administrators, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the an “Indemnified PartiesParty”) against all costs as provided in the Company Organizational Documents shall survive the Closing and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities shall continue in full force and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for effect. For a period of six (6) years after from the Effective TimeClosing, the Company shall, and Parent shall cause the Company to, maintain in each case effect the exculpation, indemnification and advancement of expenses equivalent to the fullest extent permitted under Applicable Law (provisions of the Company Organizational Documents as in effect immediately prior to the Closing solely with respect to acts or omissions occurring prior to the Closing and shall pay not amend, repeal or otherwise modify any expenses such provisions in advance any manner that would adversely affect the rights thereunder of any present (as of the final disposition Closing) or former director or officer of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterCompany; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of any action pending or asserted or any claim made for indemnification within such claim period shall continue until the final disposition of such action or resolution of such claim. The Surviving Corporation From and after the Closing, Parent shall pay all reasonable expensesguarantee and stand surety for, and shall cause the Company to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.5.
(b) Without limiting any additional rights that any Person may have under any agreement or applicable Law, Parent and Buyer shall, jointly and severally, from and after the Closing, indemnify and hold harmless the Company, its Subsidiaries and each Indemnified Party against any liability for or on account of Tax in connection with a Post-Offer Reorganization, including attorneys’ feesall obligations to pay a judgment, that may settlement, or penalty and reasonable expenses incurred in connection with any Action in relation thereto; provided that, any such indemnity of an Indemnified Party shall be limited to Taxes incurred by any such Indemnified Party in enforcing his or her capacity as a director or officer of the indemnity Company and not as a holder of any of the Shares or other obligations provided in this Section 5.4equity of the Company.
(c) From The Company may purchase prior to the Closing, and for a period of six years if the Company does not purchase prior to the Closing, Parent shall use reasonable best efforts to cause the Company to purchase at or after the Effective TimeClosing, the Surviving Corporation shall maintain in effect a tail policy under the current directors’ and officers’ liability insurance policies maintained at such time by XETA the Company in respect of acts or omissions occurring at or prior to the Closing, which tail policy (provided, that i) will be effective for a period from the Surviving Corporation may substitute therefor policies of at least Closing through and including the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coveragedate six (6) years after the Closing with respect to matters occurring claims arising from facts or events that existed or occurred prior to or at the Closing and (ii) will contain coverage that is at least as protective to such directors and officers as the coverage provided by such existing policies; provided, that, the premium for such tail policy may not be (and Parent shall not be required to cause the Company to expend) in excess of three hundred percent (300%) of the last annual premium paid prior to the Effective Time; providedClosing. Parent shall cause any such policy to be maintained in full force and effect for their full term, however, that in no event shall and cause all obligations thereunder to be honored by the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountCompany.
(d) In Without limiting any of the event rights or obligations under this Section 5.5, for a period of six (6) years after the Surviving Corporation Closing Parent shall cause the Company to keep in full force and effect, and comply with the terms and conditions of, (solely with respect to acts or omissions occurring prior to the Closing) any agreement in effect as of the date of this Agreement between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party that has been made available to Parent.
(e) This Section 5.5 will survive the consummation of the Transactions and is intended to benefit, and after the Closing is enforceable by, any Person or entity referred to in this Section 5.5. The indemnification and advancement provided for in this Section 5.5 is not exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, Contract, or otherwise. If Parent, Buyer, the Company or any of their respective successors or assigns (other than pursuant to the Transactions) (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving company corporation or entity of resulting from such consolidation or merger or (ii) transfers all or substantially all a majority of its properties and assets to any personPerson, then, and in each such case, Parent or Buyer, as applicable, shall make proper provision shall be made so provisions such that the such successors and or assigns of the Surviving Corporation shall assume the applicable obligations set forth in this Section 5.45.5.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Purchase Agreement (Stryker Corp), Purchase Agreement (Wright Medical Group N.V.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate For six years after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof, an officer or director of incorporation Stone and bylaws its Subsidiaries or Wave and its Subsidiaries (each an “Indemnified Party”), who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, or investigative (a “proceeding”) against all losses, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such settlement is effected with the prior written consent of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this AgreementCorporation, which provisions shall will not be amendedunreasonably withheld)) actually and reasonably incurred by the Indemnified Party because the Indemnified Party is or was a director or officer of Stone, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Wave or any of its subsidiaries in respect of actions their respective Subsidiaries pertaining to any act or omissions omission existing or occurring at or prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (includingthe “Indemnified Liabilities”) to the full extent permitted under Delaware law (and Georgia law, without limitationto the extent applicable) or the Surviving Corporation’s articles of incorporation and bylaws. If any claim for Indemnified Liabilities is asserted or made by an Indemnified Party, any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the matters contemplated standards set forth under the DGCL (and the GBCC to the extent applicable) shall be made by this Agreement).
(b) From and after the Effective Time, independent counsel mutually acceptable to the Surviving Corporation shalland the Indemnified Party; and provided, to the fullest extent permitted under Applicable Lawfurther, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent that nothing herein shall impair any rights or obligations of XETA and each of its subsidiaries (collectively, the “any Indemnified Parties”) Party. If any claim or claims are brought against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Indemnified Party (whether arising before or after the Effective Time), whether civilsuch Indemnified Party may select counsel for the defense of such claim, criminalwhich counsel, administrative if selected prior to the Effective Time, shall be reasonably acceptable to Stone (if such claim involves an officer or investigative, arising out director of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the TransactionsStone), whether occurring before and reasonably acceptable to Wave (if such claim involves any officer or director of Wave), and which, if selected after the Effective Time, whether asserted shall be reasonably acceptable to the Surviving Corporation.
(b) The Surviving Corporation shall promptly advance all reasonable out-of-pocket expenses of each Indemnified Party in connection with any such action or claimed prior toproceeding described above, at as such expenses are incurred, to the fullest extent permitted by the DGCL (and the GBCC to the extent applicable), subject to the receipt by the Surviving Corporation of an undertaking by or after on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Effective Time, Surviving Corporation.
(c) The Surviving Corporation shall maintain Stone’s and Wave’s existing officers’ and directors’ liability insurance policy (“D&O Insurance”) for a period of at least six years after the Effective Time, in each case but only to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action related to actions or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made omissions prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (; provided, that the Surviving Corporation may substitute therefor policies of at least the same substantially similar coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps former directors or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountofficers.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Prime Medical Services Inc /Tx/), Merger Agreement (Healthtronics Surgical Services Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate For a period of incorporation and bylaws of six years from the Effective Time, the Surviving Corporation Charter and the organizational documents of each of its subsidiaries Surviving Corporation Bylaws shall contain provisions no less favorable for the indemnification to the persons covered thereby with respect full extent permitted by Law of individuals who, at or prior to exculpationthe Effective Time, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as were directors, officers, fiduciaries or agents of the date Company or any of this Agreementits Subsidiaries, 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 affect adversely the rights thereunder of individuals who at any time from those individuals, unless such modification shall be required by Law and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior then only to the Effective Time (including, without limitation, the matters contemplated minimum extent required by this Agreement)Law.
(b) From and after After the Effective Time, the Surviving Corporation and Parent shall, jointly and severally, to the fullest extent permitted under Applicable Lawapplicable Law or any applicable contract or agreement in effect on the date hereof and made available to Parent, indemnifyindemnify and hold harmless, hold harmless and advance provide advancement of expenses to to, each present and former director, officer, employee, fiduciary director and agent officer of XETA the Company and each of its subsidiaries Subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, penalties, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission omission, or alleged act or omission, in their capacity as a an officer or director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to date hereof. In the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition event of any such action claim, action, suit, proceeding or proceeding to each investigation, any Indemnified Party wishing to claim indemnification hereunder shall promptly notify Parent upon learning of same; provided that the failure to so notify shall not relieve Parent of any liability it may have hereunder except to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)failure materially prejudices Parent. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Surviving Corporation Corporation, promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that neither the Company nor the Surviving Corporation shall not be obligated pursuant to this subsection (bSection 6.06(b) to pay the fees and expenses of more than one counsel (plus appropriate in addition to local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any extent that two or more Indemnified Parties, in which case of such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at shall have conflicting interests in the expense outcome of the Surviving Corporationsuch action; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-six year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the The Surviving Corporation shall maintain in effect for six years from the Effective Time, if available, the current directors’ and officers’ liability insurance policies maintained by XETA the Company (provided, provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective TimeTime containing terms and conditions that are not in the aggregate less favorable; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c6.06(c) more than an amount per year equal to 300250% of current annual premiums paid by XETA the Company for such insurance andinsurance; provided, however, that in the event the cost of an expiration, termination or cancellation of such coverage shall exceed that amountcurrent policies, Purchaser or the Surviving Corporation shall purchase use their reasonable best efforts to obtain as much coverage as is possible under substantially similar policies for such amountmaximum annual amount in aggregate annual premiums.
(d) In the event the Surviving Corporation 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 all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision Parent shall, and shall be made so that the successors and assigns of cause the Surviving Corporation shall assume or its successors or assigns, to maintain the policies and honor the obligations set forth provided for in this Section 5.46.06.
(e) In the event that Parent shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent all of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom 6.06. The provisions of this Section 5.4 applies without 6.06 are intended for the consent benefit of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries ofenforceable by, each of the Indemnified Parties and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwisetheir respective heirs and representatives.
Appears in 2 contracts
Samples: Merger Agreement (CNL Retirement Properties Inc), Merger Agreement (Health Care Property Investors Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Holdings and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by Target Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of Target Company (each an “D&O Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Target Company Charter Documents, as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.8 of the Disclosure Schedules, shall not be amendedassumed by the Surviving Entity in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim made during such period, until the rights thereunder final disposition of individuals who at any time from and such proceeding or claim.
(b) For six years after the date of this Agreement Effective Time, to the fullest extent permitted under applicable Law, the Surviving Entity, (the “D&O Indemnifying Parties”) shall indemnify, defend and to hold harmless each D&O Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and including the Effective Time were directors, officers, employees, fiduciaries fines arising in whole or agents of XETA or any of its subsidiaries in respect part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
(b) From , and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance shall reimburse each D&O Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such D&O Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Entity’s receipt of the final disposition of any an undertaking by such action or proceeding to each D&O Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such D&O Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable Law; provided, however, that the Surviving Corporation shall Entity will not be liable for any settlement effected without its the Surviving Entity’s prior written consent (which consent shall not be unreasonably withheldconditioned, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From Prior to the Closing, Target Company shall obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years after from the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of Time with at least the same coverage and amounts amount and containing terms and conditions that are no not less advantageous to such the directors and officers and directors, so long of Target Company as such substitution does not result in gaps or lapses in coverage) Target Company’s existing policies with respect to matters occurring claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement) (the “D&O Tail Policy”). Target Company shall bear the cost of the D&O Tail Policy, and such costs, to the extent not paid prior to the Effective TimeClosing, shall be included in the determination of Transaction Expenses. During the term of the D&O Tail Policy, Holdings shall not (and shall cause the Surviving Entity not to) take any action following the Closing to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amountneither Holdings, the Surviving Corporation Entity nor any Affiliate thereof shall purchase as much coverage as possible for be obligated to pay any premiums or other amounts in respect of such amountD&O Tail Policy.
(d) The obligations of Holdings and the Surviving Entity under this Section 5.8 shall survive the consummation of the Merger and other transactions contemplated hereby and shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party to whom this Section 5.8 applies without the consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this Section 5.8 applies shall be third-Party beneficiaries of this Section 5.8, each of whom may enforce the provisions of this Section 5.8).
(e) In the event Holdings, the Surviving Corporation Entity 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 Surviving Entity or entity of in such consolidation or merger Merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Holdings or the Surviving Corporation Entity, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In 5.8. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the event Target Company or its officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.45.8 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (AIRO Group, Inc.), Merger Agreement (AIRO Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective TimeTime and until the sixth anniversary of the Effective Time and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated, Corel and the Surviving Corporation shall(each, an "Indemnifying Party") shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the fullest extent permitted under Applicable Lawdate hereof or who becomes prior to the Effective Time, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each Inprise or any of its subsidiaries Subsidiaries (collectively, the “"Indemnified Parties”") against (i) all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriescosts and expenses (including reasonable attorneys' fees), liabilities liabilities, judgments and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, for or arises in whole or in part out of, the fact that such Indemnified Party is or was a period director or officer of six years after Inprise or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Effective TimeTime ("Indemnified Liabilities"), and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest full extent permitted under Applicable Law applicable law; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Except as disclosed in Section 6.10 of the Inprise Disclosure Letter, Inprise is not aware of any Indemnified Liabilities or of any reasonable basis for the assertion thereof. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (and shall whether arising prior to or after the Effective Time), (i) the Indemnifying Parties will pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory investigation to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to the full extent permitted by applicable law; provided that the person to whom expenses are advanced provides any other rights undertaking required by applicable law to repay such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.advance if it is ultimately determined that such person is not entitled to indemnification;
Appears in 2 contracts
Samples: Merger Agreement (Inprise Corp), Merger Agreement (Inprise Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Yuma and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Delaware Merger Subsidiary agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company and Yuma now existing in favor of each Person who is now, or has been at any time prior to the certificate date hereof or who becomes prior to the Merger Effective Time an officer or director of incorporation and bylaws (i) any DPAC Company (each, a “Company Indemnified Party”), as provided in its Governing Documents, the Governing Documents of XETA the Company or the DGCL, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other contracts in effect on the date hereof and disclosed in Section 5.10 of the Company Disclosure Schedule, shall not be amendedassumed by the Company as the Surviving Company in the Merger at the Merger Effective Time, repealed (ii) any Yuma Company (each, a “Yuma Indemnified Party” and collectively with the Company Indemnified Party, the “Indemnified Parties”), as provided in Yuma’s Governing Documents or otherwise modified for a period of six years from the Effective Time CCC, in any manner that would affect adversely the rights thereunder of individuals who at any time from and after each case as in effect on the date of this Agreement Agreement, or pursuant to any other contracts in effect on the date hereof and to disclosed in Section 4.07 of the Yuma Disclosure Schedule, shall be assumed by Yuma Delaware in the Reincorporation Merger at the Reincorporation Effective Time, without further action, and including shall survive the Effective Time were directorsMerger and shall remain in full force and effect in accordance with their terms, officersand, employees, fiduciaries in the event that any proceeding is pending or agents of XETA asserted or any claim made during such period, until the final disposition of its subsidiaries in respect of actions such proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)claim.
(b) From and For six (6) years after the Merger Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable applicable Law, Yuma Delaware and the Surviving Company shall jointly and severally indemnify, defend and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA Company Indemnified Party and each of its subsidiaries (collectivelyYuma Indemnified Party, the “Indemnified Parties”) as applicable, against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid fines arising in connection with any threatened whole or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising in part out of actions or pertaining to any action omissions (and alleged actions or omission omissions) in their capacity as a director, officer, employee, fiduciary an officer or agent (including, without limitation, any claim arising out director of this Agreement or any of the TransactionsDPAC Companies or the Yuma Companies, as applicable, occurring at or prior to the Merger Effective Time (including in connection with the transactions contemplated by this Agreement), whether occurring before and shall reimburse each Company Indemnified Party and each Yuma Indemnified Party for any legal or after the Effective Timeother expenses reasonably incurred by such Company Indemnified Party or Yuma Indemnified Party in connection with investigating or defending any such losses, whether asserted or claimed prior toclaims, at or after the Effective Timedamages, for a period of six years after the Effective Timeliabilities, in each case fees, expenses, judgments and fines as such expenses are incurred, subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action Surviving Company’s or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon Yuma Delaware’s receipt from the Indemnified Party to whom expenses are advanced of an undertaking by such Company Indemnified Party or Yuma Indemnified Party, as the case may be, to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Company Indemnified Party or Yuma Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable Law; provided, however, that the Surviving Corporation shall Company and Yuma Delaware will not be liable to any Yuma Indemnified Party for any settlement effected without its Yuma Delaware’s prior written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after The Company shall obtain, prior to the Merger Effective Time, to be effective not later than the Surviving Corporation shall maintain in effect Merger Effective Time, “tail” insurance policies, covering each director and officer of the current directors’ Company for all risks and officers’ liability perils currently covered by the Company’s director and officer insurance policies maintained by XETA (providedpolicies, except that the Surviving Corporation insured amounts may substitute therefor policies be increased as determined by the Company in its reasonable discretion, with a claims period of not less than six (6) years from the Merger Effective Time with at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of the Company and directorsits Subsidiaries, so long as such substitution does not result applicable, in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Merger Effective Time; provided, however, that Time (including in no event shall connection with the Surviving Corporation be required to expend pursuant to transactions contemplated by this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountAgreement).
(d) Yuma Delaware shall obtain or maintain insurance policies covering each director and officer of Yuma Delaware and Yuma for all risks and perils currently covered by Yuma’s director and officer insurance policies, except that the insured amounts may be increased as determined by the Company in its reasonable discretion, with a claims period of not less than six (6) years from the Merger Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of Yuma and its Subsidiaries, as applicable, in each case with respect to claims arising out of or relating to events which occurred before or at the Merger Effective Time (including in connection with the transactions contemplated by this Agreement).
(e) The obligations of Yuma, Yuma Delaware and the Surviving Company under this Section 6.17 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Company Indemnified Party or Yuma Indemnified Party to whom this Section 6.17 applies without the consent of such affected Company Indemnified Party or Yuma Indemnified Party, as applicable (it being expressly agreed that the Indemnified Parties to whom this Section 6.17 applies shall be third party beneficiaries of this Section 6.17, each of whom may enforce the provisions of this Section 6.17).
(f) In the event Yuma, the Surviving Corporation Company 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 or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Yuma or the Surviving Corporation Company, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In 6.17. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Company Indemnified Party and any Yuma Indemnified Party is entitled, whether pursuant to Law, contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Yuma, the event Company or their respective officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.46.17 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Yuma Energy, Inc.), Agreement and Plan of Merger and Reorganization (Yuma Energy, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shallEntity shall provide exculpation, indemnification and advancement of expenses for each Indemnitee, with respect to actions or omissions prior to the fullest extent permitted under Applicable LawEffective Time, which is at least as favorable in scope and amount to such Indemnitee as the exculpation, indemnification and advancement of expenses provided to such Indemnitee immediately prior to the Effective Time in the Articles and bylaws of the Company, as in effect on the date of this Agreement.
(b) Without limiting the provisions of Section 6.8(a), during the period commencing as of the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Entity shall: (i) indemnify, defend and hold harmless each Indemnitee against and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all from any costs and or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in settlement in connection with any threatened or actual claimAction, action, suit, proceeding or investigation (whether arising before or after to the Effective Time), whether civil, criminal, administrative or investigative, arising extent such Action arises out of or pertaining pertains to (x) any action or omission or alleged action or omission in their such Indemnitee’s capacity as a directoran officer or director of any Company Entity, officeror (y) this Agreement, employeethe CVR Agreement, fiduciary or agent (including, without limitation, any claim arising out of this the Voting Agreement or any of the Transactions)transactions contemplated hereby, whether occurring before or after including the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law Merger; and (and shall ii) pay any expenses in advance of the final disposition of any such action or proceeding Action the expenses (including attorneys’ fees and any expenses incurred by any Indemnitee in connection with enforcing any rights with respect to each Indemnified Party to the fullest extent permitted under Applicable Law, indemnification) of any Indemnitee upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking by or on behalf of such Indemnitee to repay such advances as required under Applicable Law)amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. In Notwithstanding anything to the event of any such claimcontrary set forth in this Agreement, action, suit, proceeding or investigation, Parent and the Surviving Entity (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its their prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); ) and provided, further, that the Surviving Corporation (ii) shall not be obligated pursuant have any obligation hereunder to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel Indemnitee to the Indemnified Parties, under extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified PartiesLaw, in which case such additional counsel (including local counsel) as may be required the Indemnitee shall promptly refund to avoid any such conflict Parent or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in Entity the event that any claim for indemnification is asserted or made prior to the Effective Time or within amount of all such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4expenses theretofore advanced pursuant hereto.
(c) From and for a period of six years after Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation shall maintain in effect Entity as of the current Effective Time to, obtain an extension of the coverage afforded by the Company’s existing directors’ and officers’ liability insurance policies maintained by XETA and the Company’s existing fiduciary liability insurance policies (providedcollectively, that the Surviving Corporation may substitute therefor policies “D&O Insurance”), in each case, for a claims reporting or discovery period of at least six (6) years from and after the same coverage Effective Time with respect to any claim related to any period of time at or prior to the Effective Time from one or more reputable insurance carriers with terms, conditions and amounts containing terms and conditions retentions that are no less advantageous to such officers favorable in the aggregate than the coverage provided under the Company’s existing policies and directors, so with limits of liability that are no lower than the limits on the Company’s existing policies as long as such substitution the annual premium in the aggregate does not result exceed in gaps or lapses in coverageany one year two hundred percent (225%) of the annual aggregate premium(s) paid most recently by the Company (which aggregate premiums are hereby represented and warranted by the Company to be $33,632); provided, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Entity shall be obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to for a cost not exceeding such amount. The availability of D&O Insurance under this Section 5.4(c6.8(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in shall not affect the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountindemnification obligations under Section 6.8(b).
(d) The Indemnitees to whom this Section 6.8 applies are intended to be third-party beneficiaries of this Section 6.8. The provisions of this Section 6.8 are intended to be for the benefit of each Indemnitee and his or her successors, heirs, executors, trustees, fiduciaries, administrators or representatives.
(e) In the event that Parent or the Surviving Corporation Entity 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 merger, or (ii) transfers or conveys all or substantially all 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 Parent or the Surviving Corporation Entity, as applicable, shall assume succeed to the obligations set forth in this Section 5.4.
(e) In 6.8. Parent shall guarantee the event that performance by the Surviving Corporation should fail, at any time from Entity of its obligations under Section 6.8(a) and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Lawb), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Summit Financial Services Group Inc), Merger Agreement (Summit Financial Services Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminalcriminal or administrative, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of including any such claim, action, suit, proceeding or investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (itogether, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time, the Surviving Corporation (the “Indemnifying Party”) shall, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law or the Company Organizational Documents (or any similar organizational document) of the Company or any of its Subsidiaries, when applicable, and any indemnity agreements applicable to any such Indemnified Parties may retain counsel Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, legal and other expenses (including local counsel) satisfactory to them, the reimbursement for reasonable legal and other fees and expenses incurred in advance of which shall be the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such claim, action, suit, proceeding or investigation, subject to the Surviving Corporation promptly after statements therefor are received Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and (ii) the Surviving Corporation shall use reasonable best efforts other fees and expenses paid in the vigorous defense of any advance if it is ultimately determined that such matterIndemnified Party is not entitled to be indemnified under applicable Law; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counselselected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single action unless there issuch claim, as determined by counsel to the Indemnified Partiesaction, under applicable standards of professional conductsuit, a conflict proceeding or a reasonable likelihood of a conflict on any significant issue between the positions of any two investigation.
(b) The Company may, or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made Corporation shall obtain prior to the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the directors and officers of the Company, in each case with respect to claims arising out of or within relating to events which occurred before or at the Effective Time; provided, however that in no event will the Surviving Corporation be required to expend an annual premium for such six-year periodcoverage in excess of 250% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement (the “Maximum Premium”). If such insurance coverage cannot be obtained at all, all rights to indemnification or can only be obtained at an annual premium in respect excess of such claim shall continue until the final disposition of such claim. The Maximum Premium, the Surviving Corporation shall pay all reasonable expenses, including attorneysobtain that amount of directors’ fees, and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium. The Company represents that may be incurred by any Indemnified Party its current annual premium for director and officer insurance is set forth in enforcing Section 6.8(b) of the indemnity and other obligations provided in this Section 5.4Company Disclosure Letter.
(c) From The provisions of this Section 6.8 will survive the Closing and, after the Effective Time, are intended to be for the benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and their rights under this Section 6.8 are in addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or similar organizational document) of the Surviving Corporation or any of its Subsidiaries or otherwise.
(d) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their respective certificates of incorporation or bylaws (or similar organizational document) for a period of six years after the Effective Time, provisions regarding the Surviving Corporation shall maintain elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, in effect the current directors’ and officers’ liability insurance policies maintained by XETA (providedaggregate with respect to each such entity, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the intended beneficiaries than the corresponding provisions contained in such officers and directors, so long organizational documents as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to of the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to date of this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountAgreement.
(de) In the event that the Surviving Corporation 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 Persons, or (ii) transfers all or substantially all of its properties and or assets to any personPerson, then, then and in each such case, proper provision shall will be made so that the successors and applicable successors, assigns of the Surviving Corporation shall or transferees assume the obligations set forth in this Section 5.46.8.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Stiefel Laboratories, Inc.), Merger Agreement (Barrier Therapeutics Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company and each person who served as a director or officer of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request of or for the benefit of the Company (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company Charter Documents, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.07, shall not be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms for a period of six years, and, in the event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.
(b) For six years from after the Effective Time Time, to the fullest extent permitted under applicable Law, Parent and the Surviving Corporation (the “Indemnifying Parties”) shall indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries whole or agents of XETA or any of its subsidiaries in respect part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
(b) From , and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance shall reimburse each Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Corporation’s receipt of the final disposition of any an undertaking by such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable Law; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); .
(c) The Surviving Corporation shall, and provided, further, that Parent shall cause the Surviving Corporation shall not be obligated pursuant to this subsection to, (bi) to pay maintain in effect for a period of six (6) years after the fees Effective Time, if available, the current policies of directors’ and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained officers’ liability insurance maintained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made Company immediately prior to the Effective Time (provided that the Surviving Corporation may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company when compared to the insurance maintained by the Company as of the date hereof), or within (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company, in each case with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event will the Surviving Corporation be required to expend an annual premium for such six-year periodcoverage in excess of 200% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement, which amount is set forth on Section 5.07(c) of the Company Disclosure Letter (the “Maximum Premium”). If such insurance coverage cannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium.
(d) The obligations of Parent and the Surviving Corporation under this Section 5.07 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.07 applies without the prior written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.07 applies shall be third party beneficiaries of this Section 5.07, each of whom may enforce the provisions of this Section 5.07).
(e) In the event Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.07. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors and employees, it being understood and agreed that the indemnification provided for in respect of this Section 5.07 is not prior to, or in substitution for, any such claim shall continue until the final disposition of claims under any such claim. The Surviving Corporation policies.
(f) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.45.07.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Ebix Inc), Merger Agreement (Adam Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Certificate of incorporation and bylaws Incorporation of the Surviving Corporation and the organizational documents of each of its subsidiaries Subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate Certificate of incorporation and bylaws Incorporation of XETA TPC as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA TPC or any of its subsidiaries Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification is required by law.
(b) From TPC shall, to the fullest extent permitted under applicable law and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable law, indemnifyindemnify and hold harmless, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA TPC and each of its subsidiaries Subsidiary (collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") against all costs and expenses (including attorneys’ ' fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactionstransactions contemplated hereby), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the later of the date of this Agreement or the Effective Time, in each case to the fullest extent permitted under Applicable Delaware Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of an any undertaking to repay such advances as required under Applicable Delaware Law); provided, however, that neither TPC nor the Surviving Corporation shall be liable for any indemnification hereunder if the costs, expenses, judgment, fines, losses, claims, damages, liabilities or settlement amounts paid by an Indemnified Party arise out of or relate to (i) a situation in which the Indemnified Party did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of TPC or the Subsidiary, (ii) intentional misconduct or (iii) with respect to any criminal action or proceeding, the Indemnified Party had no reasonable cause to believe his conduct was unlawful. In the event of any such claim, action, suit, proceeding or investigationinvestigation with respect to which indemnification is provided under the previous sentence, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to themthem and TPC or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of which shall be paid by the Surviving Corporation such counsel, promptly after statements therefor are received and (ii) TPC and the Surviving Corporation shall use all reasonable best efforts in the vigorous defense of any such matter; providedPROVIDED, howeverHOWEVER, that neither TPC nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned)consent; and provided, further, PROVIDED FURTHER that neither TPC nor the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.this
Appears in 2 contracts
Samples: Merger Agreement (TPC Corp), Merger Agreement (Pacificorp Holdings Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of For six years after the Effective Time, the Surviving Corporation Entity shall indemnify, defend and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who has been at any time from and after prior to the date of this Agreement and hereof or who becomes prior to and including the Effective Time were directorsTime, officersan officer or director of Target and its Subsidiaries (each an “Indemnified Party”), employeeswho was or is made or is threatened to be made a party or is otherwise involved in any action, fiduciaries suit or agents proceeding, whether civil, criminal, or investigative (a “proceeding”) against all losses, damages, liabilities, fees and expenses (including reasonable fees and disbursements of XETA counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such settlement is effected with the prior written consent of Parent, which will not be unreasonably withheld)) actually and reasonably incurred by the Indemnified Party because the Indemnified Party is or was a director or officer of Target pertaining to any of its subsidiaries in respect of actions act or omissions omission existing or occurring at or prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (including, without limitation, the matters contemplated by this Agreement).
(b“Indemnified Liabilities”) From and after the Effective Time, the Surviving Corporation shall, to the fullest full extent permitted under Applicable LawDelaware law or the Surviving Entity’s certificate of incorporation and bylaws. If an Indemnified Party makes or asserts any claim for Indemnified Liabilities, indemnifyany determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under the DGCL shall be made by independent counsel mutually acceptable to the Surviving Entity and the Indemnified Party; and provided, hold harmless and advance expenses to each present and former directorfurther, officer, employee, fiduciary and agent that nothing herein shall impair any rights or obligations of XETA and each of its subsidiaries (collectively, the “any Indemnified Parties”) Party. If any claim or claims are brought against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Indemnified Party (whether arising before or after the Effective Time), whether civilsuch Indemnified Party may select counsel for the defense of such claim, criminal, administrative or investigative, arising out of or pertaining which counsel shall be reasonably acceptable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent Target (including, without limitation, any claim arising out of this Agreement or any of if selected before the Transactions), whether occurring before or Effective Time) and the Surviving Entity (if selected after the Effective Time).
(b) The Surviving Entity shall promptly advance all reasonable out-of-pocket expenses of each Indemnified Party in connection with any such action or proceeding described above, whether asserted as such expenses are incurred, to the fullest extent permitted by the LLCA, subject to the receipt by the Surviving Entity of an undertaking by or claimed prior to, at or after on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Effective Time, Surviving Entity.
(c) The Surviving Entity shall maintain Target’s existing officers’ and directors’ liability insurance policy (“D&O Insurance”) for a period of at least six years after the Effective Time, in each case but only to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action related to actions or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring omissions prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should failEntity may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; provided further, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents aggregate amount of XETA and its subsidiaries shall premiums to be fully indemnified and that paid with respect to the provisions maintenance of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 such D&O Insurance for such six-year period shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseexceed $3 million.
Appears in 2 contracts
Samples: Merger Agreement (Stone Energy Corp), Merger Agreement (Energy Partners LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company and its Subsidiaries (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company’s Charter Documents, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 7.1 of the Company Disclosure Letter, shall not be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries proceeding is pending or agents of XETA asserted or any claim made during such period, until the final disposition of its subsidiaries in respect of actions such proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)claim.
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable applicable Law, indemnify, hold harmless Parent and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries the Surviving Corporation (collectively, the “Indemnified Indemnifying Parties”) shall indemnify, defend and hold harmless each Indemnified Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriesliabilities, liabilities costs, fees, expenses, judgments and settlement amounts paid fines arising in connection with any threatened whole or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising in part out of actions or pertaining to any action or omission omissions in their capacity as such occurring at or prior to the Effective Time (including in connection with the transactions contemplated by this Agreement) or pertaining to the fact that the Indemnified Party is or was a director, officer, employee, fiduciary under any Employee Plan or agent (including, without limitation, any claim arising out of this Agreement is or any was serving at the request of the Transactions)Company as a director or officer of any other corporation, whether occurring before partnership, joint venture or after the Effective Timeother enterprise, whether asserted or claimed prior to, at or after the Effective Time to the fullest extent that the Company would have been permitted under applicable Law or the Company’s Charter Documents, in each case as in effect on the date of this Agreement. The Indemnifying Parties shall advance each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, costs, fees, expenses, judgments and fines to the fullest extent permitted under applicable Law, subject to the Surviving Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law; provided, however, that the Surviving Corporation will not be liable for any settlement effected without the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld or delayed).
(c) Prior to the Effective Time, the Company shall, in consultation with Parent, and if the Company is unable to, Parent shall (or shall cause the Surviving Corporation co), as of the Effective Time, obtain and fully pay for “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and amounts and containing terms, conditions and levels of coverage that are not less advantageous to the directors and officers of the Company and its Subsidiaries from an insurance carrier with the same or better rating as the Company’s insurance carrier as of the date of this Agreement, in each case with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement). If such “tail” prepaid insurance policies have been obtained, Parent shall, and shall cause the Surviving Corporation, after the Effective Time to maintain such policies in full force and effect, for their full term, and to continue to honor its respective obligations thereunder. If the Company fails to obtain such “tail” prepaid insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to themif available, the reasonable fees and expenses current policies of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of the Company and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior its Subsidiaries when compared to the Effective Timeinsurance maintained by the Company as of the date hereof from an insurance carrier with the same or better rating as the Company’s insurance carrier as of the date of this Agreement); provided, however, that in no event shall will the Surviving Corporation be required required, nor shall the Company be permitted, to expend pursuant to this Section 5.4(c) more than an amount per year equal to annual premium for such coverage in excess of 300% of current the last annual premiums premium paid by XETA the Company for such insurance andprior to the date of this Agreement, in which amount is set forth on Section 7.1(c) of the event Company Disclosure Letter (the cost of “Maximum Premium”). If such insurance coverage shall exceed that amountcannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation shall purchase as much coverage as possible will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for such amountan annual premium equal to the Maximum Premium.
(d) The obligations of Parent and the Surviving Corporation under this Section 7.1 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.1 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 7.1 applies and their heirs and legal representatives shall be third party beneficiaries of this Section 7.1, each of whom may enforce the provisions of this Section 7.1).
(e) In the event Parent, the Surviving Corporation 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 in such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties properties, rights and other assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and 7.1. For six years after the Effective Time, the Indemnifying Parties agree, to comply with the fullest extent permitted by applicable Law, to cause the Surviving Corporation’s (or any successor’s) Charter Documents to maintain the current provisions regarding elimination of liability of directors and indemnification of and advancement of expenses to directors, officers and employees of the foregoing obligations set forth Company that are contained in the Company’s Charter Documents as in effect on the date of this Agreement. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 5.47.1 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Brigham Exploration Co), Merger Agreement (Statoil Asa)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Xxxxxxxx shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of VIST or an VIST Subsidiary (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA Xxxxxxxx, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions VIST or omissions an VIST Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by VIST under Applicable Law, indemnify, hold harmless the PCBL and advance expenses to each present under VIST’s articles of incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and bylaws. Xxxxxxxx shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by VIST under Applicable Lawthe PCBL and under VIST’s articles of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding advance payments if he or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which she shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall adjudicated or determined to be not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights entitled to indemnification in respect of such claim shall continue until the final disposition of such claimmanner set forth below. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Any Indemnified Party in enforcing the indemnity and other obligations provided in wishing to claim indemnification under this Section 5.4.7.6(a) upon learning of any Claim, shall notify Xxxxxxxx and shall deliver to Xxxxxxxx the undertaking referred to in the previous section; provided that the failure to so notify shall not affect the obligations of Xxxxxxxx under this section except to the extent such failure to notify materially prejudices Xxxxxxxx..
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Xxxxxxxx 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Xxxxxxxx shall assume the obligations set forth in this Section 5.47.6.
(ec) In the event that the Surviving Corporation should failXxxxxxxx shall maintain, at any time from and after in effect for six (6) years following the Effective Time, VIST’s current directors’ and officers’ liability insurance policies covering the officers and directors of VIST (provided, that Xxxxxxxx may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply matters occurring at or prior to the Effective Time; provided, however, that in no event shall Xxxxxxxx be required to expend annually pursuant to this Section 7.6 more than $180,000 with any respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the foregoing annual premium necessary to maintain or procure such insurance coverage, or to procure the tail policy described below, exceeds the Maximum Amount, Xxxxxxxx shall maintain, or shall purchase a six-year tail policy for, the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, VIST agrees in order for Xxxxxxxx to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims. In lieu of the foregoing, Xxxxxxxx may satisfy its obligations set forth in pursuant to this Section 5.47.6 by purchasing, subject to the Maximum Amount, a tail policy providing for any reason, Parent shall be responsible therefor coverage which contains terms and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance conditions which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the are not materially less favorable than VIST’s current directors’ and officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation’ liability insurance policies.
(fd) The obligations of Parent and the Surviving Corporation Xxxxxxxx provided under this Section 5.4 shall not 7.6 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Xxxxxxxx directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseXxxxxxxx.
Appears in 2 contracts
Samples: Merger Agreement (Vist Financial Corp), Merger Agreement (Tompkins Financial Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Newco will indemnify, defend and bylaws of the Surviving Corporation and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who has been at any time from and after prior to the date of this Agreement and hereof or who becomes prior to and including the Effective Time were directorsTime, officers, employees, fiduciaries (i) an officer or agents director of XETA Dynegy and its Subsidiaries or an employee of Dynegy or any of its subsidiaries Subsidiaries who acts as a fiduciary under any of the Dynegy Benefit Plans, (ii) an officer or director of Illinova and its Subsidiaries or an employee of Illinova or any Subsidiary of Illinova who acts in respect a fiduciary under any of the Illinova Benefit Plans (each an "INDEMNIFIED PARTY") against all losses, claims, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such settlement is effected with the prior written consent of Newco, which will not be unreasonably withheld)) arising in whole or in part out of actual or alleged actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable LawIllinois law or Newco's articles of incorporation and bylaws and Dynegy's and Illinova's indemnification obligations in effect at the date hereof, indemnify, hold harmless and shall advance expenses incurred in the defense of any Action to each present the fullest extent permitted by law; provided, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Illinois law, Newco's articles of incorporation or bylaws or such obligations, as the case may be, will be made by independent counsel mutually acceptable to Newco and former directorthe Indemnified Party; and provided, officerfurther, employee, fiduciary and agent that nothing herein will impair any rights or obligations of XETA and each of its subsidiaries (collectively, the “any Indemnified Parties”) Party. If any claim or claims are brought against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Indemnified Party (whether arising before or after the Effective Time), whether civilsuch Indemnified Party may select counsel for the defense of such claim, criminal, administrative or investigative, arising out of or pertaining which counsel 60 62 should be reasonably acceptable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent Dynegy and Illinova (including, without limitation, any claim arising out of this Agreement or any of if selected prior to the Transactions), whether occurring before or Effective Time) and Newco (if selected after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, ).
(b) Newco will maintain Dynegy's and Illinova's existing officers' and directors' liability insurance policies for a period of not less than six years after the Effective Time, in each case but only to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action related to actions or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring omissions prior to the Effective Time; provided, howeverthat Newco may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; provided further, that in no event shall the Surviving Corporation aggregate annual premiums to be required paid with respect to expend pursuant to this Section 5.4(c) more than an amount per the maintenance of such insurance for such six year equal to 300period will not exceed 150% of the higher of Dynegy or Illinova's current annual premiums paid by XETA premium for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountits existing insurance.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Dynegy Inc), Merger Agreement (Illinova Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.9.1. For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, FNFG shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of HNC or an HNC Subsidiary (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA FNFG, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions HNC or omissions an HNC Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by HNC under Applicable Law, indemnify, hold harmless the PCBL and advance expenses to each present under HNC’s Certificate of Incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. FNFG shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by HNC under Applicable Lawthe PCBL and under HNC’s Certificate of Incorporation and Bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.1 upon learning of any Claim, shall notify FNFG (but the failure so to notify FNFG shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure materially prejudices FNFG) and shall deliver to FNFG the undertaking referred to in the previous section.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either FNFG 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation FNFG shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. FNFG shall maintain, at any time from and after or shall cause First Niagara Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of HNC (provided, that FNFG may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall FNFG be required to expend pursuant to this Section 7.9.3 more than 200% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by HNC with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, FNFG shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, HNC agrees in order for FNFG to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.9.4. The obligations of Parent and the Surviving Corporation FNFG provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against FNFG directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseFNFG.
Appears in 2 contracts
Samples: Merger Agreement (Harleysville National Corp), Merger Agreement (First Niagara Financial Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws organizational documents of the Surviving Corporation and the organizational documents of each of its subsidiaries Company shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses no less favorable than are the provisions set forth in the certificate of incorporation and bylaws of XETA the Company as of the date of this AgreementAgreement to the persons covered thereby, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA the Company or any of its subsidiaries Company Subsidiary in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, including the matters contemplated by this Agreement), unless such modification is required by law.
(b) From and after the Effective Time, each of the Surviving Corporation Company and Parent shall, to the fullest extent permitted under Applicable Lawapplicable law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA the Company and each of its subsidiaries Company Subsidiary (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (including, without limitation, including any claim arising out of this Agreement or any of the Transactionstransactions contemplated hereby), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law applicable law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Lawapplicable law, upon receipt from the Indemnified Party to whom expenses are advanced of an any undertaking to repay such advances as required under Applicable Lawapplicable law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation Company and Parent promptly after statements therefor are received and (ii) each of the Surviving Corporation Company and Parent shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that neither the Surviving Corporation Company nor Parent shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that neither the Surviving Corporation Company nor Parent shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as reasonably determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; Company and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claimParent. The Surviving Corporation Company and Parent shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after Prior to the Effective Time, the Company shall purchase, and, following the Effective Time, the Surviving Corporation Company shall maintain in effect maintain, a fully pre-paid six-year tail policy to the current policy of directors’ and officers’ liability insurance policies maintained on the date hereof by XETA the Company (providedthe “Current Policy”), which tail policy shall cover a period from the Effective Time through and including the date six years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Surviving Corporation may substitute therefor policies of at least Effective Time, and which tail policy shall contain the same coverage and amounts containing amount as, and contain terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amountequivalent to, the Surviving Corporation shall purchase as much coverage as possible for such amountcurrently provided by the Current Policy.
(d) In the event the Surviving Corporation Company, Parent 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 of such consolidation or merger or (ii) transfers all or 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 Corporation Company or Parent, as applicable, shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation Company should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that the Surviving Corporation Company may have or claim (except as would be prohibited by Applicable Lawthe DGCL), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA the Company and its subsidiaries the Company Subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving CorporationCompany.
(f) The obligations of the Company, Parent and and/or the Surviving Corporation Company under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter certificate of incorporation or bylaws of XETAthe Company, under Oklahoma Law the DGCL or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Expressjet Holdings Inc), Merger Agreement (Skywest Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Parent, Merger Sub, and Second Merger Sub agree that all rights to indemnification, advancement of incorporation expenses, and bylaws exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Surviving Corporation and the organizational documents of each Company or any of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth Subsidiaries (each an “Indemnified Party”) as provided in the certificate Charter Documents of incorporation and bylaws of XETA the Company, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.08 of the Company Disclosure Letter, shall not be amendedassumed by the Surviving Company in the Mergers, repealed or otherwise modified for without further action, at the Effective Time and shall survive the Mergers and shall remain in full force and effect in accordance with their terms.
(b) For a period of six years from the Effective Time Time, the Parent and Surviving Company (the “Indemnifying Parties”) shall indemnify, defend and hold harmless each Indemnified Party (in all their capacities) against all losses, claims, damages, liabilities, fees, expenses, judgments and fines incurred in connection with any manner that would affect adversely claim, suit, action or proceeding, whether civil, criminal, administrative, or investigative (each a “Claim”) and shall provide advancement of reasonable expenses (including reasonable attorneys’ fees) to each Indemnified Party to the rights thereunder same extent such Indemnified Party has the right to advancement of individuals who at any time from reasonable and after documented expenses pursuant to the Charter Documents of the Company as in effect on the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents extent that such Indemnified Party does not have such a right to advancement of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitationexpenses, the matters contemplated Indemnifying Parties shall promptly reimburse each Indemnified Party for any legal or other expenses reasonably incurred by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “such Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid Party in connection with investigating or defending any threatened or actual claimsuch Claim as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance receipt of the final disposition of any an undertaking by such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, indemnified under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4Law.
(c) From and for The Company shall (i) obtain as of the Effective Time “tail” insurance policies with a claims period of six years after from the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of Time with at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the officers and directorsor directors of the Company or any of its Subsidiaries (each an “Indemnified Party”), so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective TimeTime (including in connection with the transactions contemplated by this Agreement) (the “Tail Policy”); provided, however, that in no event shall the Surviving Corporation Company be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% annual premium for such coverage in excess of current three hundred percent of the last annual premiums premium paid by XETA the Company or any of its Subsidiaries for such insurance andprior to the date of this Agreement, which amount is set forth in Section 5.07(c) of the event Company Disclosure Letter (the cost of “Maximum Premium”). If such insurance coverage shall exceed that amountcannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation Company shall purchase as much obtain, and Parent shall cause the Surviving Company to obtain, the greatest coverage as possible available for such amounta cost not exceeding an annual premium equal to the Maximum Premium.
(d) The obligations of Parent, Merger Sub, Second Merger Sub, and the Surviving Company under this Section 5.08 shall survive the consummation of the Mergers and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.08 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.08 applies shall be third party beneficiaries of this Section 5.08, each of whom may enforce the provisions of this Section 5.08).
(e) In the event Parent, the Surviving Corporation Company or any of its their respective successors or assigns assigns: (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving company corporation or entity of in such consolidation or merger merger; or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Company, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail5.08. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, at any time from and after the Effective Timewhether pursuant to Law, to comply with any of the foregoing obligations set forth Contract, or otherwise. Nothing in this Section 5.4Agreement is intended to, for any reason, Parent shall be responsible therefor construed to, or shall release, waive, or impair any rights to directors’ and hereby agrees officers’ insurance claims under any policy that is or has been in existence with respect to perform such obligations unconditionally without regard to any defense the Company or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the its officers, directors, and employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly understood and agreed that the directors, officers, employees, fiduciaries and agents to whom indemnification provided for in this Section 5.4 applies shall be third-party beneficiaries of5.08 is not prior to, and entitled to the rights of third-party beneficiaries underor in substitution for, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have claims under the charter or bylaws of XETA, under Oklahoma Law or otherwiseany such policies.
Appears in 2 contracts
Samples: Merger Agreement (Cerecor Inc.), Merger Agreement (Cerecor Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of For six years after the Effective Time, the Surviving Corporation Entity shall indemnify, defend and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who has been at any time from and after prior to the date of this Agreement and hereof or who becomes prior to and including the Effective Time were directorsTime, officersan officer or director of Target and its Subsidiaries (each an “Indemnified Party”), employeeswho was or is made or is threatened to be made a party or is otherwise involved in any action, fiduciaries suit or agents proceeding, whether civil, criminal, or investigative (a “proceeding”) against all losses, damages, liabilities, fees and expenses (including reasonable fees and disbursements of XETA counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such settlement is effected with the prior written consent of Parent, which will not be unreasonably withheld)) actually and reasonably incurred by the Indemnified Party because the Indemnified Party is or was a director or officer of Target pertaining to any of its subsidiaries in respect of actions act or omissions omission existing or occurring at or prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (including, without limitation, the matters contemplated by this Agreement).
(b“Indemnified Liabilities”) From and after the Effective Time, the Surviving Corporation shall, to the fullest full extent permitted under Applicable LawDelaware law or the Surviving Entity’s certificate of incorporation and bylaws. If an Indemnified Party makes or asserts any claim for Indemnified Liabilities, indemnifyany determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under the DGCL shall be made by independent counsel mutually acceptable to the Surviving Entity and the Indemnified Party; and provided, hold harmless and advance expenses to each present and former directorfurther, officer, employee, fiduciary and agent that nothing herein shall impair any rights or obligations of XETA and each of its subsidiaries (collectively, the “any Indemnified Parties”) Party. If any claim or claims are brought against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Indemnified Party (whether arising before or after the Effective Time), whether civilsuch Indemnified Party may select counsel for the defense of such claim, criminal, administrative or investigative, arising out of or pertaining which counsel shall be reasonably acceptable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent Target (including, without limitation, any claim arising out of this Agreement or any of if selected before the Transactions), whether occurring before or Effective Time) and the Surviving Entity (if selected after the Effective Time).
(b) The Surviving Entity shall promptly advance all reasonable out-of-pocket expenses of each Indemnified Party in connection with any such action or proceeding described above, whether asserted as such expenses are incurred, to the fullest extent permitted by the DGCL, subject to the receipt by the Surviving Entity of an undertaking by or claimed prior to, at or after on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Effective Time, Surviving Entity.
(c) The Surviving Entity shall maintain Target’s existing officers’ and directors’ liability insurance policy (“D&O Insurance”) for a period of at least six years after the Effective Time, in each case but only to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action related to actions or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring omissions prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should failEntity may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; provided further, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents aggregate amount of XETA and its subsidiaries shall premiums to be fully indemnified and that paid with respect to the provisions maintenance of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 such D&O Insurance for such six-year period shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseexceed $3 million.
Appears in 2 contracts
Samples: Merger Agreement (Plains Exploration & Production Co), Merger Agreement (Stone Energy Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and Purchaser agree that, the Surviving Corporation’s certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationexculpation from liabilities and indemnification of the present or former directors, indemnification officers, employees and advancement agents of expenses the Company than are set forth currently provided in the certificate Company’s Certificate of incorporation Incorporation and bylaws of XETA as of the date of this AgreementBylaws, 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 adversely the rights thereunder of any such individuals who at any time from and after until the date expiration of this Agreement and the statutes of limitations applicable to and including the Effective Time were directorssuch matters or unless such amendment, officers, employees, fiduciaries modification or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated repeal is required by this Agreement)applicable Law.
(b) From Without limiting any additional rights that any Person may have under any agreement or Company Plan, from and after the Purchase Time, the Company shall (and from and after the Effective Time, the Surviving Corporation shall), to and Parent shall cause the fullest extent permitted under Applicable LawCompany and the Surviving Corporation to, indemnify, indemnify and hold harmless and advance expenses to each present (as of the Effective Time) and former directorofficer and director of the Company (each, officertogether with such person’s heirs, employeeexecutors or administrators, fiduciary an “Indemnified Party” and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) ), against all costs and expenses (including attorneys’ fees)claims, losses, liabilities, damages, judgments, inquiries, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in settlement and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)proceeding, whether civil, criminal, administrative or investigative, arising out of or of, pertaining to any action or omission in their capacity as a connection with the fact that the Indemnified Party is or was an officer, director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions)Company, whether occurring before or after of another entity if such service was at the Effective Timerequest of or for the benefit of the Company, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent the Company or the Surviving Corporation, as applicable, is permitted to do so under Applicable Law (applicable law and shall pay any expenses in advance the Certificate of Incorporation or Bylaws as at the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)date hereof. In the event of any such claimproceeding, actioneach Indemnified Party will be entitled to advancement of expenses incurred in the defense of the proceeding from the Company or the Surviving Corporation, suitas applicable, proceeding to the same extent such Persons have the right to advancement of expenses from the Company as of the date of this Agreement pursuant to the Certificate of Incorporation and Bylaws (provided that any Person to whom expenses are advanced shall have provided an undertaking to repay such advances if it is finally determined that such Person is not entitled to indemnification), and Parent shall cause the Company and the Surviving Corporation to provide such advancement of expenses. The Company or investigationthe Surviving Corporation, (i) as applicable, shall reasonably cooperate with the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; providedmatter and any determination made or required to be made with respect to whether an Indemnified Party’s conduct complies with standards under applicable Law, however, that the certificate of incorporation or bylaws shall be made by independent legal counsel selected by the Company or the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there isCorporation, as determined by counsel applicable, and reasonably acceptable to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4Party.
(c) From and for a period of six years after The Company shall purchase by the Effective Purchase Time, and Parent shall cause the Surviving Corporation shall maintain in effect to maintain, tail policies to the current directors’ and officers’ liability insurance policies maintained on the date of this Agreement by XETA the Company, which tail policies (providedi) shall not have an aggregate premium in excess of 300% of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the existing policies (which amount is set forth in Section 6.5 of the Company Disclosure Schedule), that the Surviving Corporation may substitute therefor policies of (ii) shall be effective for a period from at least the same coverage Purchase Time through and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) including the date six years after the Closing Date with respect to matters occurring claims arising from facts or events that existed or occurred prior to or at the Effective Purchase Time, and (iii) shall contain coverage that is at least as protective to such directors and officers as the coverage provided by such existing policies (complete and accurate copies of which have been made available to Parent); provided, however, that that, if equivalent coverage cannot be obtained or can be obtained only by paying an aggregate premium in no event excess of 300% of such amount, the Company shall only be required to obtain (and the Surviving Corporation shall only be required to expend pursuant to this Section 5.4(cmaintain) more than as much coverage as can be obtained by paying an amount per year aggregate premium equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In This Section 6.5 shall survive the event consummation of the Merger and is intended to benefit, and shall be enforceable by, any Person or entity referred to in clause (a) of this Section 6.5 (whether or not parties to this Agreement). If Parent or the Surviving Corporation 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 resulting from such consolidation or merger or (ii) transfers all or substantially all 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 Parent or the Surviving Corporation Corporation, as the case may be, shall assume the applicable obligations set forth in this Section 5.46.5.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Glaxosmithkline PLC), Merger Agreement (Praecis Pharmaceuticals Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Without limiting any additional rights that any director, officer or employee may have under any Employment Agreement or Company Plan, from the Effective Time through the sixth anniversary of the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each individual who was (as of the Effective Time) a present or former officer or director of the Company and its subsidiaries (the "Indemnified Parties"), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including, without limitation, attorneys' fees and disbursements (collectively, "Costs"), 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 Party is or was an officer or director of the Company or any of its subsidiaries, or (ii) matters existing or occurring at or prior to the Effective Time (including, without limitation, arising out of or pertaining to this Agreement and the transactions and actions contemplated hereby). Each Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent or the Surviving Corporation within ten business days of receipt by Parent from the Indemnified Party of a request therefor, subject only to the provisions of undertakings required for such advancement by the MGCL.
(b) The certificate of incorporation charter and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses and exculpation of the Indemnified Parties than are set forth in the certificate of incorporation Charter and bylaws of XETA as of the date Bylaws in effect immediately prior to the execution of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period ending on the sixth anniversary of six years from the Effective Time in any manner that would materially adversely affect adversely the rights thereunder as of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries the Indemnified Parties. Parent shall, or shall cause the Surviving Corporation to, maintain, at no expense to the beneficiaries, in effect until the sixth anniversary of the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company with respect of actions to matters existing or omissions occurring at or prior to the Effective Time (including, without limitation, so long as the matters contemplated by this Agreement).
(b) From and after annual premium therefor is not in excess of 300% of the Effective Time, the Surviving Corporation shall, last annual premium paid prior to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out date of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that which are no not materially less advantageous to such officers any beneficiary thereof). Parent agrees to honor and directorsperform under, so long as such substitution does not result in gaps and to cause the Surviving Corporation to honor and perform under, all indemnification agreements with the Indemnified Parties entered into by the Company or lapses in coverage) with respect to matters occurring any of its subsidiaries prior to the date of this Agreement.
(c) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time; provided) is made against or involves any Indemnified Party, howeveron or prior to the sixth anniversary of the Effective Time, that in no event shall the Surviving Corporation be required to expend pursuant to provisions of this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, 6.7 shall continue in effect until the event the cost final disposition of such coverage shall exceed that amountclaim, the Surviving Corporation shall purchase as much coverage as possible for such amountaction, suit, proceeding or investigation.
(d) In This covenant is intended to be for the event benefit of, and shall be enforceable by, each of the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be the continuing or surviving company or entity deemed exclusive of such consolidation or merger or (ii) transfers all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such to which an Indemnified Party may have under the charter or bylaws of XETAis entitled, under Oklahoma Law whether pursuant to law, contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Rouse Company), Merger Agreement (General Growth Properties Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six (6) years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Mid Penn shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of First Priority or First Priority Bank (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA Mid Penn, which consent shall not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions First Priority or omissions a First Priority Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by First Priority under Applicable Law, indemnify, hold harmless the PBCL and advance expenses to each present under First Priority’s articles of incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and bylaws. Mid Penn shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by First Priority under Applicable Lawthe PBCL and under First Priority’s articles of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any advance payments if such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which Party shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall adjudicated or determined to be not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights entitled to indemnification in respect of such claim shall continue until the final disposition of such claimmanner set forth below. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Any Indemnified Party wishing to claim indemnification under this subsection upon learning of any Claim, shall notify Mid Penn (but the failure so to notify Mid Penn shall not relieve it from any liability that it may have under this subsection, except to the extent such failure materially prejudices Mid Penn) and shall deliver to Mid Penn the undertaking referred to in enforcing the indemnity and other obligations provided in this Section 5.4previous sentence.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Mid Penn 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 bank or entity of such consolidation or merger or (ii) transfers all or substantially all 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 Corporation Mid Penn shall assume the obligations set forth in this Section 5.47.10.
(ec) In the event that the Surviving Corporation should failMid Penn shall maintain, at any time from and after or shall cause Mid Penn to maintain, in effect for six (6) years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of First Priority (provided, that Mid Penn may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall Mid Penn be required to expend pursuant to this subsection more than 150% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by First Priority with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Mid Penn shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, First Priority agrees in order for Mid Penn to fulfill its agreement to provide directors and officers liability insurance policies for six (6) years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(fd) The obligations of Parent and the Surviving Corporation Mid Penn provided under this Section 5.4 shall not 7.10 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Mid Penn directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseMid Penn.
Appears in 2 contracts
Samples: Merger Agreement (First Priority Financial Corp.), Merger Agreement (Mid Penn Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Holdings and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by Target Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of Target Company (each an “D&O Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Target Company Charter Documents, as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.8 of the Disclosure Schedules, shall not be amendedassumed by the Surviving Entity in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim made during such period, until the rights thereunder final disposition of individuals who at any time from and such proceeding or claim.
(b) For six years after the date of this Agreement Effective Time, to the fullest extent permitted under applicable Law, the Surviving Entity, (the “D&O Indemnifying Parties”) shall indemnify, defend and to hold harmless each D&O Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and including the Effective Time were directors, officers, employees, fiduciaries fines arising in whole or agents of XETA or any of its subsidiaries in respect part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
(b) From , and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance shall reimburse each D&O Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such D&O Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Entity’s receipt of the final disposition of any an undertaking by such action or proceeding to each D&O Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such D&O Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable Law; provided, however, that the Surviving Corporation shall Entity will not be liable for any settlement effected without its the Surviving Entity’s prior written consent (which consent shall not be unreasonably withheldconditioned, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From Prior to the Closing, Target Company shall obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years after from the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of Time with at least the same coverage and amounts amount and containing terms and conditions that are no not less advantageous to such the directors and officers and directors, so long of Target Company as such substitution does not result in gaps or lapses in coverage) Target Company’s existing policies with respect to matters occurring claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement) (the “D&O Tail Policy”). Target Company shall bear the cost of the D&O Tail Policy, and such costs, to the extent not paid prior to the Effective TimeClosing, shall be included in the determination of Transaction Expenses. During the term of the D&O Tail Policy, Holdings shall not (and shall cause the Surviving Entity not to) take any action following the Closing to cause the D&O Tail Policy to be cancelled or any provision therein to be amended or waived; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amountneither Holdings, the Surviving Corporation Entity nor any Affiliate thereof shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation be obligated to pay any premiums 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 amounts in respect of such consolidation or merger or (ii) transfers all or 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 Corporation shall assume the obligations set forth in this Section 5.4D&O Tail Policy.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (AIRO Group, Inc.), Merger Agreement (AIRO Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries HoldCo shall contain provisions no less favorable cause all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation now existing in the certificate favor of incorporation and bylaws any present or former director, officer or employee of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Parent or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time Subsidiaries (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs as provided in the Parent Organizational Documents, in the comparable organizational document of any of the Parent’s Subsidiaries, in any indemnification or similar Contract between an Indemnified Party and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities Parent or one of its Subsidiaries disclosed in the Parent Disclosure Letter or in the Parent SEC Reports to survive the Transactions and settlement amounts paid to continue in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or full force and effect for a period of not less than six years after the Second Effective Time)Time or, whether civilif longer, criminalfor such period as is set forth in any applicable agreement with an Indemnified Party in effect on the date of this Agreement.
(b) HoldCo shall and Parent shall cause HoldCo to, administrative indemnify all Indemnified Parties to the fullest extent permitted by the articles of incorporation, by-laws or investigativeother equivalent governing documents of the Company or any of the Company’s Subsidiaries as of the date hereof or otherwise permitted by the DGCL or MBCA, with respect to all acts and omissions arising out of or pertaining relating to any action their service as directors, officers or omission in their capacity employees of the Company, its Subsidiaries or another Person, if such Indemnified Party is or was serving as a director, officer, employee, fiduciary officer or agent (including, without limitation, any claim arising out employee of this Agreement or any such other Person at the request of the Transactions), whether occurring before Company or after the Effective TimeParent, whether asserted or claimed prior to, at or after or occurring before the Second Effective Time, for a period Time (including in connection with the negotiation and execution of six years after this Agreement and the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance consummation of the final disposition of transactions contemplated by this Agreement). If any such action or proceeding to each Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to the fullest extent permitted under Applicable Lawindemnification hereunder, upon HoldCo shall advance as incurred any damages out of or incurred in connection with such Legal Action, subject to Parent’s or HoldCo’s, as applicable, receipt from the Indemnified Party to whom expenses are advanced of an undertaking by or on behalf of such Indemnified Party, if required by the DGCL or the applicable organizational document, to repay such advances as required damages if it is ultimately determined under Applicable Law)applicable Law that such Indemnified Party is not entitled to be indemnified. In the event of any such claim, action, suit, proceeding or investigationLegal Action, (i) HoldCo shall cooperate with the Indemnified Party in the defense of any such Legal Action and (ii) HoldCo shall not settle, compromise or consent to the entry of any judgment in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action or such Indemnified Party otherwise consents in writing.
(c) HoldCo shall, and the Company and Parent shall cause HoldCo to, maintain in effect for at least six years after the Second Effective Time the current policies of directors’ and officers’ liability insurance (the “D&O Policy”) maintained by Parent or policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Second Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this Agreement) so long as HoldCo is not required to pay an annual premium in excess of 300% of the last annual premium paid by Parent for such insurance before the date of this Agreement (such 300% amount being the “Maximum Premium”). Prior to the First Effective Time, notwithstanding anything to the contrary in this Agreement, in lieu of its obligations under this Section 5.8(c), the Company may purchase a six-year “tail” prepaid policy on the D&O Policy on terms and conditions no less advantageous, in the aggregate, than the D&O Policy for an annual premium up to the Maximum Premium, and in the event that the Company or Parent shall purchase such a “tail” policy prior to the Effective Time, HoldCo shall, and the Company shall cause HoldCo to, maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder in lieu of all other obligations of the Company and HoldCo under this Section 5.8(c) for so long as such “tail” policy shall be maintained in full force and effect.
(d) Parent hereby acknowledges that the Indemnified Parties may retain counsel have certain rights to indemnification, advancement of expenses and/or insurance provided by other Persons. Parent hereby agrees (including local counseli) satisfactory that HoldCo is the indemnitor of first resort (i.e., its obligations to themthe Indemnified Parties are primary and any obligation of such other Persons to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Indemnified Party are secondary), the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) that HoldCo shall be required to advance the Surviving Corporation full amount of expenses incurred by any such Indemnified Party and shall use reasonable best efforts be liable for the full indemnifiable amounts, without regard to any rights any such Indemnified Party may have against any such other Person and (iii) that Parent irrevocably waives, relinquishes and releases (and shall cause HoldCo to irrevocably waive, relinquish and release) such other Persons from any and all claims against any such other Persons for contribution, subrogation or any other recovery of any kind in the vigorous defense respect thereof. Each of Parent and HoldCo further agrees that no advancement or payment by any of such other Persons on behalf of any such matter; providedIndemnified Party with respect to any claim for which such Indemnified Party has sought indemnification from HoldCo shall affect the foregoing and such other Persons shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Party against the Company and its Subsidiaries.
(e) The covenants contained in this Section 5.8 are intended to be for the benefit of, howeverand shall be enforceable by, that each of the Surviving Corporation Indemnified Parties and their respective heirs and legal representatives and shall not be liable for deemed exclusive of any settlement effected without its written consent (other rights to which consent shall not be unreasonably withheldan Indemnified Party is entitled, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated whether pursuant to this subsection (b) to pay Law, Contract or otherwise. For the fees and expenses avoidance of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there isthe doubt, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior their respective heirs and legal representatives shall be third-party beneficiaries with respect to the Effective Time or within such six-year period, all rights to indemnification covenants contained in respect of such claim shall continue until the final disposition of such claimthis Section 5.8. The Surviving Corporation HoldCo shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.45.8, except to the extent that it is ultimately determined by a Governmental Authority with valid jurisdiction that such Indemnified Party is not entitled to be indemnified pursuant to this Agreement.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(df) In the event the Surviving Corporation that Parent or HoldCo 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 substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision Parent and HoldCo shall be made take all necessary action so that the successors and or assigns of Parent or HoldCo, as the Surviving Corporation case may be, shall assume succeed to the obligations set forth in this Section 5.45.8.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Ikonics Corp), Merger Agreement (Ikonics Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of For six years after the Effective Time, the Surviving Corporation shall indemnify, defend and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who has been at any time from and after prior to the date hereof an officer or director of this Agreement Target or its Subsidiaries (each an “Indemnified Party”), who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, or investigative (a “proceeding”) against all losses, damages, liabilities, fees and to expenses (including reasonable fees and including disbursements of counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such settlement is effected with the Effective Time were directorsprior written consent of Parent, officers, employees, fiduciaries which will not be unreasonably withheld)) actually and reasonably incurred by the Indemnified Party because the Indemnified Party is or agents was a director or officer of XETA Target or any of its subsidiaries in respect of actions Subsidiaries pertaining to any act or omissions omission existing or occurring at or prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (includingthe “Indemnified Liabilities”) to the full extent permitted under Delaware law or the Surviving Corporation’s certificate of incorporation and bylaws. If any claim for Indemnified Liabilities is asserted or made by an Indemnified Party, without limitation, any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the matters contemplated standards set forth under the DGCL shall be made by this Agreement).
(b) From and after the Effective Time, independent counsel mutually acceptable to the Surviving Corporation shalland the Indemnified Party; and provided, to the fullest extent permitted under Applicable Lawfurther, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent that nothing in this Section 7.3 shall impair any separate rights or obligations of XETA and each of its subsidiaries (collectively, the “any Indemnified Parties”) Party. If any claim or claims are brought against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Indemnified Party (whether arising before or after the Effective Time), whether civilsuch Indemnified Party may select counsel for the defense of such claim, criminal, administrative or investigative, arising out of or pertaining which counsel shall be reasonably acceptable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent Target (including, without limitation, any claim arising out of this Agreement or any of if selected before the Transactions), whether occurring before or Effective Time) and the Surviving Corporation (if selected after the Effective Time).
(b) The Surviving Corporation shall promptly advance all reasonable out-of-pocket expenses of each Indemnified Party in connection with any such action or proceeding described above, whether asserted as such expenses are incurred, to the fullest extent permitted by the DGCL, subject to the receipt by the Surviving Corporation of an undertaking by or claimed prior to, at or after on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Effective Time, Surviving Corporation.
(c) The Surviving Corporation shall maintain Target’s existing officers’ and directors’ liability insurance policy (“D&O Insurance”) for a period of at least six years after the Effective Time, in each case but only to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action related to actions or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made omissions prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (; provided, that the Surviving Corporation may substitute therefor policies of at least the same substantially similar coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps former directors or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountofficers.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Prime Medical Services Inc /Tx/), Merger Agreement (Medstone International Inc/)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate organizational documents of incorporation the Merger Sub and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby Company shall, with respect to exculpationindemnification of directors, indemnification officers, employees and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreementagents, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and in any manner that would adversely affect the rights thereunder of the Persons who at any time prior to and including the Effective Time were directors, officers, employees, fiduciaries identified as prospective indemnitees under Target’s articles of incorporation or agents of XETA or any of its subsidiaries the bylaws in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, including the matters contemplated by this AgreementTransactions).
(b) From and after the Effective Time, the Surviving Corporation shallCompany shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the fullest extent permitted under Applicable Lawdate hereof or who becomes prior to the Effective Time, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent an officer or director of XETA and each Target or any of its subsidiaries Subsidiaries (collectively, the each an “Indemnified PartiesParty”), who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, or investigative (a “proceeding”) against all costs losses, claims, damages, costs, liabilities, fees and expenses (including attorneys’ fees), reasonable fees and disbursements of counsel and experts and judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection settlement (provided that any such settlement is effected with the prior written consent of Parent, which will not be unreasonably withheld, conditioned or delayed) actually and reasonably incurred by the Indemnified Party based in whole or in part out of the fact the Indemnified Party is or was an officer or director of Target or any threatened Subsidiary of Target or actual claimof any other corporation, actionpartnership, suitjoint venture, proceeding trust, employee benefit plan or investigation other enterprise in which such Indemnified Party was serving at the request of the Target, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (the “Indemnified Liabilities”), to the full extent permitted under Texas law. If an Indemnified Party makes or asserts any claim for Indemnified Liabilities, any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under the TBCA or TBOC, as applicable, shall be made by independent counsel mutually acceptable to the Surviving Company and the Indemnified Party; provided, further, that nothing herein shall impair any rights or obligations of any Indemnified Party. If any claim or claims are brought against any Indemnified Party (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out counsel selected for the defense of or pertaining such claim shall be reasonably acceptable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent Target (including, without limitation, any claim arising out of this Agreement or any of if selected before the Transactions), whether occurring before or Effective Time) and the Surviving Company (if selected after the Effective Time).
(c) The Surviving Company shall promptly advance all reasonable out-of-pocket expenses of each Indemnified Party in connection with any such action or proceeding described above, whether asserted as such expenses are incurred, to the fullest extent permitted by the TBOC, subject to the receipt by the Surviving Company of an undertaking by or claimed prior to, at or after on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Effective Time, Surviving Company.
(d) The Surviving Company shall maintain Target’s existing officers’ and directors’ liability insurance policy (“D&O Insurance”) for a period of at least six (6) years after the Effective Time, in each case but only to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action related to actions or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring omissions prior to the Effective Time; provided, howeverthat the Surviving Company may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; provided further, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an aggregate amount per year equal to 300% of current annual premiums to be paid with respect to the maintenance of such D&O Insurance for such six-year period shall not exceed one hundred seventy-five percent (175%) of the aggregate amount of annual premiums currently paid by XETA Target for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountD&O Insurance.
(de) In the event Parent or any of its successors or assigns or the Surviving Corporation Company or any of its successors or assigns (i) consolidates with or merges into any other person of its Affiliates and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any personof its Affiliates, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall Company, as applicable, assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsection.
(f) The obligations provisions of Parent and the Surviving Corporation under this Section 5.4 8.5 shall not survive the Effective Time and are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without for the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to the rights of third-party beneficiaries undershall be enforceable by, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter and his or bylaws of XETA, under Oklahoma Law or otherwiseher heirs and representatives.
Appears in 2 contracts
Samples: Merger Agreement (Alta Mesa Energy LLC), Merger Agreement (Meridian Resource Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless, to the fullest extent permitted by Law, each person who is now, or has been at any time prior to the date of incorporation this Agreement or who becomes such prior to the Effective Time, an officer or director of the Company or any of the Company Subsidiaries (the “Indemnified Parties”) against (i) any and bylaws all losses, claims, damages, costs, expenses, fines, liabilities or judgments, including any amounts that are paid in settlement with the prior written approval of the Surviving Corporation (which approval shall not be unreasonably withheld or delayed) of or in connection with any Action based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of the Company or any of the Company Subsidiaries whether pertaining to any action or omission existing or occurring at or prior to the Effective Time and whether asserted or claimed prior to, or at or after, the Effective Time (“Indemnified Liabilities”), and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby. Subject to the Surviving Corporation’s right to assume the defense of any Action as provided below, the Surviving Corporation will pay all expenses of each Indemnified Party as incurred in advance of the final disposition of any such Action to the fullest extent permitted by Law to advance such expenses upon receipt of an undertaking from the Indemnified Party to repay such advances if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under this Section 6.06, upon learning of any such Action shall notify the Surviving Corporation (but the failure so to notify the Surviving Corporation shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06 except to the extent such failure materially prejudices the Surviving Corporation), and shall deliver to the Surviving Corporation an undertaking of the kind described above. In the event any Action is brought against any Indemnified Party (whether arising before or after the Effective Time) or an Indemnified Party is required to be a witness in any Action: (i) the Surviving Corporation shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption the Surviving Corporation shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense, or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there is, under applicable standards of professional conduct, a conflict on any significant issue between the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to the Surviving Corporation, and the Surviving Corporation shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (ii) except to the extent otherwise required due to conflicts of interest, the Surviving Corporation shall be obligated pursuant to this Section to pay for only one firm of counsel for all Indemnified Parties unless there is a conflict of interest that necessitates more than one law firm, and (iii) the Surviving Corporation shall not be liable for any settlement of any Action effected without its prior written consent, which consent shall not be unreasonably withheld or delayed.
(b) For a period of six years from and after the Effective Time, the organizational documents of each of its subsidiaries shall the Surviving Corporation will contain provisions no less favorable to the persons covered thereby with respect to exculpation, exculpation and indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as Article SEVEN of the date Company’s Amended and Restated Certificate of this AgreementIncorporation, which provisions shall may not be amended, repealed or otherwise modified for a period of six years from and after the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under unless such modification is required by applicable standards of professional conductLaw, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior then only to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred minimum extent required by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4applicable Law.
(c) From and for a period of six years after The Company shall purchase, prior to the Effective Time, the Surviving Corporation shall maintain a six year prepaid “tail policy” on terms and conditions (in effect both amount and scope) providing substantially equivalent benefits, and from a carrier or carriers with comparable credit ratings, as the current policies of directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least Company and the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) Company Subsidiaries with respect to matters occurring prior to arising on or before the Effective TimeTime and covering the Transactions; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) Company pay more than an amount per year equal to 300250% of the current annual premiums paid premium payable by XETA the Company for such insurance and(the “Maximum Amount”); provided, in further, that if the event Company is unable to obtain the cost of such coverage insurance required by this Section 6.06(c) for an amount less than or equal to the Maximum Amount, it shall exceed that amountobtain as much comparable insurance as possible for the Maximum Amount; and immediately following the Effective Time, the Surviving Corporation shall purchase provide for the current officers and directors of the Company and the Company Subsidiaries who become directors or officers of the Surviving Corporation after the Closing to be covered under the Surviving Corporation’s directors’ and officers’ liability program with the same terms as much coverage as possible for such amountthose applicable to the other officers and directors of the Surviving Corporation and its subsidiaries.
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges with or 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 all or 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 Company or the Surviving Corporation Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 5.46.06.
(e) In This Section 6.06 is intended for the event that irrevocable benefit of, and to grant third party rights to, the Indemnified Parties, and will be binding on all successors and assigns of the Company, Parent and the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any Corporation. Each of the foregoing obligations set forth Indemnified Parties will be entitled to enforce the covenants contained in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation6.06.
(f) The obligations Nothing in this Agreement is intended to or shall be construed to waive or impair the rights of Parent any director or officer of the Company or any Company Subsidiary to make a claim under any directors’ and officers’ liability insurance that is or has been in existence with respect to the Surviving Corporation under this Section 5.4 shall not be terminated Company or modified in such a manner as any of the Company Subsidiaries prior to adversely affect any directorthe Effective Time, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly understood and agreed that the directors, officers, employees, fiduciaries and agents to whom indemnification provided for in this Section 5.4 applies shall be third-party beneficiaries of, and entitled 6.06 is not prior to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be or in addition to substitution for any other rights such Indemnified Party may have claims under the charter or bylaws of XETA, under Oklahoma Law or otherwisesuch insurance.
Appears in 2 contracts
Samples: Merger Agreement (SeaBright Holdings, Inc.), Merger Agreement (Enstar Group LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminalcriminal or administrative, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of including any such claim, action, suit, proceeding or investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to themtogether, the reasonable fees and expenses of which shall be paid “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties Party in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made capacity taken prior to the Effective Time Time, the Surviving Corporation will, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or within required by applicable Law, and as may otherwise be required by the Company Organizational Documents (or any similar organizational document of the Company or its Subsidiaries), when applicable, or any indemnity agreements or Contracts applicable to any such six-year periodIndemnified Party, all rights to indemnification against any losses, claims, damages, Liabilities, costs, legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in respect advance of such claim shall continue until the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually incurred by such Indemnified Party in connection with such claim. , action, suit, proceeding or investigation, subject to the Surviving Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined by a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law.
(b) The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party will (i) maintain in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and effect for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect if available, the current policies of directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts containing terms and conditions that are no not less advantageous in the aggregate to such the directors and officers of the Company) or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and directorsamounts and containing terms and conditions that are not less advantageous in the aggregate to the directors and officers of the Company, so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring prior claims, actions, suits, proceedings or investigations arising out of or relating to events which occurred before or at the Effective Time; provided, however, however that in no event shall will the Surviving Corporation be required to expend pursuant to an aggregate premium for such “tail” insurance coverage contemplated by subsection (ii) of this Section 5.4(c8.6(b) more than an amount per year equal to 300in excess of 100% of current the last annual premiums premium paid by XETA the Company for its current policies of directors’ and officers’ liability insurance (which fiscal year 2009 premiums are hereby represented and warranted by the Company to be as set forth in Section 6.8(b) of the Company Disclosure Letter) prior to the date of this Agreement (the “Maximum Premium”). If such “tail” insurance andcoverage contemplated by subsection (ii) of this Section 8.6(b) cannot be obtained at all, or can only be obtained at an aggregate premium in excess of the event the cost of such coverage shall exceed that amountMaximum Premium, the Surviving Corporation shall purchase as much will obtain that amount of such “tail” insurance coverage as possible obtainable for such amountan aggregate premium equal to the Maximum Premium.
(dc) In The provisions of this Section 6.8 will survive the event Closing and, after the Effective Time, are intended to be for the benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and their rights under this Section 6.8 are in addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or similar organizational document) or the certificate of incorporation or bylaws of Parent, the Surviving Corporation or any of its their respective Subsidiaries or otherwise.
(d) Following the Effective Time, Parent, the Surviving Corporation and each of their respective Subsidiaries shall include and maintain in effect in their respective certificate of incorporation or bylaws (or similar organizational documents) for a period of six years after the Effective Time, provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, in the aggregate with respect to each such entity, no less advantageous to the intended beneficiaries than the corresponding provisions contained in such organizational documents as of the date of this Agreement.
(e) In the event that the Parent, Surviving Corporation 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 or entity of such consolidation or merger Persons, or (ii) transfers all or substantially all of its properties and or assets to any personPerson, then, then and in each such case, proper provision shall will be made so that the successors and applicable successors, assigns of the Surviving Corporation shall or transferees assume the obligations set forth in this Section 5.46.8.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (American Fiber Systems, Inc.), Merger Agreement (Fibernet Telecom Group Inc\)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Following the Effective Time, Mid Penn shall indemnify, defend and bylaws of the Surviving Corporation and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of or who has been at any time before the date hereof or who becomes before the Effective Time, an officer, director or employee of this AgreementWilliam Penn or William Penn Bank (the “Indemnified Parties”) against all losses, claims, damages, fines, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of Mid Penn, which provisions consent shall not be amendedunreasonably withheld, repealed conditioned or otherwise modified for delayed) of or in connection with, arising out of or pertaining to any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a period “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of six years from the Effective Time in any manner fact that would affect adversely the rights thereunder such person is or was a director, officer or employee of individuals who at any time from and after the date of this Agreement and William Penn or a William Penn Subsidiary if such Claim pertains to and including the Effective Time were directorsacts, officersomissions, employees, fiduciaries or agents of XETA or any matter of its subsidiaries in respect of actions fact arising, existing or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters approval of this Agreement and the transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by William Penn under Applicable Law, indemnify, hold harmless the MDGCL and advance expenses to each present under William Penn’s articles of incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and bylaws. Mid Penn shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by William Penn under Applicable Lawthe MDGCL and under William Penn’s articles of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if such Indemnified Party shall be adjudicated or determined to be not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under Applicable Law)this subsection upon learning of any Claim, shall notify Mid Penn (but the failure so to notify Mid Penn shall not relieve it from any liability that it may have under this subsection, except to the extent such failure materially prejudices Mid Penn) and shall deliver to Mid Penn the undertaking referred to in the previous sentence. In Following the event Effective Time, Mid Penn shall reasonably cooperate with the Indemnified Parties, and the Indemnified Parties shall reasonably cooperate with Mid Penn, in the defense of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Mid Penn 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 bank or entity of such consolidation or merger or (ii) transfers all or substantially all 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 Corporation Mid Penn shall assume the obligations set forth in this Section 5.47.10.
(ec) In the event that the Surviving Corporation should failMid Penn shall maintain, at any time from and after or shall cause Mid Penn Bank to maintain, in effect for six (6) years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of William Penn (provided, that Mid Penn may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time (including the approval of this Agreement and the transactions contemplated hereby); provided, however, that in no event shall Mid Penn be required to expend pursuant to this subsection more than two hundred percent (200%) of the foregoing obligations set forth annual cost currently expended by William Penn with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Mid Penn shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In lieu of the foregoing, Mid Penn or William Penn, in this Section 5.4consultation with, for any reasonbut only upon the consent of Mid Penn, Parent may (and at the request of Mid Penn, William Penn shall be responsible therefor use its reasonable best efforts to) obtain at or prior to the Effective Time a six (6)-year “tail” policy under William Penn’s existing directors’ and hereby agrees officers’ insurance policy providing equivalent coverage to perform such obligations unconditionally without regard that described in the preceding sentence if and to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) extent that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall same may be fully indemnified and obtained for an amount that does not exceed the provisions of this subsection Maximum Amount.
(ed) be a primary obligation of Parent and not merely a guarantee by Parent of the The obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation , Mid Penn or William Penn under this Section 5.4 7.9 shall not be terminated or modified after the Effective Time in such a manner so as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and Indemnified Party or any other person entitled to the rights benefit of third-party beneficiaries under, this Section 5.4). The rights 7.9 without the prior written consent of each the affected Indemnified Party hereunder or affected person.
(e) The obligations of Mid Penn provided under this Section 7.9 shall survive the Effective Time and are intended to be enforceable against Mid Penn directly by the Indemnified Parties and shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws binding on all respective successors and permitted assigns of XETA, under Oklahoma Law or otherwiseMid Penn.
Appears in 2 contracts
Samples: Merger Agreement (Mid Penn Bancorp Inc), Merger Agreement (William Penn Bancorporation)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub will cause all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Target now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Target or its Subsidiary (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Charter Documents, in each case as of in effect on the date of this Agreement, which provisions shall not or pursuant to any other Contracts in effect on the date hereof, to be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time Time, and such rights will survive the Merger and will remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim is made during such period, until the rights thereunder final disposition of individuals who at any time from and such proceeding or claim.
(b) For six (6) years after the date of this Agreement Effective Time, to the fullest extent permitted under applicable Law, Parent and to the Surviving Corporation will indemnify, defend and including the Effective Time were directorshold harmless each Indemnified Party against all losses, officersclaims, employeesdamages, fiduciaries liabilities, fees, expenses, judgments and fines arising in whole or agents of XETA or any of its subsidiaries in respect part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
(b) From , and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance will reimburse each Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Corporation’s receipt of the final disposition of any an undertaking by such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable Law; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall will not be unreasonably withheld, delayed conditioned or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From The Surviving Corporation will, and Parent will cause the Surviving Corporation to, (i) maintain in effect for a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect if available, the current policies of directors’ and officers’ liability insurance policies maintained by XETA the Target immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of the Target when compared to the insurance maintained by the Target as of the date hereof), or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and directorsamounts and containing terms and conditions that are not less advantageous to the directors and officers of the Target, so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective TimeTime (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event shall will the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than expend, for any such annual policy in excess of $300,000 annually (the “Maximum Premium”). If such insurance coverage cannot be obtained at an amount per year annual premium equal to 300% of current annual premiums paid by XETA for such insurance and, in or less than the event the cost of such coverage shall exceed that amountMaximum Premium, the Surviving Corporation shall purchase as much coverage as possible will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for such amountan annual premium equal to the Maximum Premium.
(d) The obligations of Parent and the Surviving Corporation under this Section 7.07 will survive the consummation of the Merger and will not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.07 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 7.07 applies will be third party beneficiaries of this Section 7.07, each of whom may enforce the provisions of this Section 7.07).
(e) In the event Parent, the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall will not be the continuing or surviving company corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall will be made so that the successors and assigns of Parent or the Surviving Corporation shall Corporation, as the case may be, will assume all of the obligations set forth in this Section 5.4.
(e) In 7.07. The agreements and covenants contained herein will not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, will be construed to or will release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the event that the Surviving Corporation should failTarget or its officers, at any time from directors and after the Effective Time, to comply with any of the foregoing obligations set forth employees. The indemnification provided for in this Section 5.47.07 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Enernoc Inc), Merger Agreement (World Energy Solutions, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws From the Closing Date through the sixth anniversary of the Surviving Corporation Closing Date, Buyer shall indemnify any present or former director or officer of Buyer, or its Subsidiaries (the “Indemnified Parties”) against all claims, losses, Liabilities, damages, judgments, fines and the organizational documents reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Legal Action arising out of each of its subsidiaries shall contain provisions no less favorable or pertaining to the persons covered thereby with respect fact that the Indemnified Party is or was a director or officer of Buyer or its Subsidiaries, whether asserted or claimed prior to, at or at or after the Closing, in each case, to exculpation, indemnification and the fullest extent permitted under applicable Law. Each Indemnified Party will be entitled to advancement of expenses than Costs incurred in the defense of any such Legal Action from Buyer upon receipt by Buyer from the Indemnified Party of a request therefor; provided that any such Person to whom Costs are advanced provides an undertaking to Buyer, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Buyer shall cooperate with the Indemnified Party in the defense of any such Legal Action and Buyer shall not settle, compromise or consent to the entry of any judgment in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action or such Indemnified Party otherwise consents in writing.
(b) The provisions presently set forth in the certificate of incorporation and bylaws of XETA as Buyer with respect to indemnification, advancement of the date Costs and exculpation of this Agreement, which provisions present and former directors and officers of Buyer shall not be amended, modified or repealed or otherwise modified for a period of six years from the Effective Time Closing in any a manner that would adversely affect adversely the rights thereunder of individuals who who, at any time from or prior to the Closing, were officers or directors of Buyer. The certificate of incorporation and bylaws of the Surviving Company shall contain, and Buyer shall cause the certificate of incorporation and bylaws of the Surviving Company to so contain, provisions no less favorable with respect to indemnification, advancement of Costs and exculpation of present and former directors and officers as those presently set forth in the certificate of incorporation and bylaws of Buyer.
(c) From and after the date Closing, (i) the Buyer shall fulfill and honor in all respects the obligations of this Agreement the Company to its Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and including the Effective Time were directorssuch Indemnified Parties, officers, employees, fiduciaries or agents with respect to claims arising out of XETA or any of its subsidiaries in respect of actions or omissions matters occurring at or prior to the Effective Time Closing and (includingii) Buyer shall fulfill and honor in all respects the obligations of Buyer to its Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Buyer’s Organizational Documents and pursuant to any indemnification agreements between Buyer and such Indemnified Parties, without limitation, with respect to claims arising out of matters occurring at or prior to the matters contemplated by this Agreement)Closing.
(bd) From and after the Effective TimeClosing, Buyer shall maintain a directors’ and officers’ Liability insurance policy, with an effective date as of the Surviving Corporation shallClosing Date on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Buyer. In addition, Buyer shall also purchase and maintain, following consultation with, and subject to the fullest extent permitted approval of, and at the expense of, Seller, a non-cancellable extension of the directors’ and officers’ Liability coverage of Buyer’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least one (1) year from and after the Closing with respect to any claim related to any period of time at or prior to the Closing with terms, conditions, retentions and limits of Liability that are no less favorable than the coverage provided under Applicable LawXxxxx’s existing policies as of the date of this Agreement with respect to any actual or alleged error, indemnifymisstatement, hold harmless and advance expenses to each present and former directormisleading statement, officeract, employeeomission, fiduciary and agent neglect, breach of XETA and each duty or any matter claimed against a director or officer of Buyer or any of its subsidiaries (collectively, Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the “Indemnified Parties”) against all costs and expenses Closing (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions).
(e) The covenants contained in this Section 5.06 are intended to be for the benefit of, whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance be enforceable by, each of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received their respective heirs and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation legal representatives and shall not be liable for deemed exclusive of any settlement effected without its written consent (other rights to which consent shall not be unreasonably withheldan Indemnified Party is entitled, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated whether pursuant to this subsection (b) to pay Law, Contract or otherwise. For the fees and expenses avoidance of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there isthe doubt, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior their respective heirs and legal representatives shall be third-party beneficiaries with respect to the Effective Time or within such six-year periodcovenants contained in this Section 5.06. From and after the Closing, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation Buyer shall pay all reasonable expensesCosts, including reasonable attorneys’ fees, that may be are incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.45.06, except to the extent that it is ultimately determined by a Governmental Authority with valid jurisdiction that such Indemnified Party is not entitled to be indemnified pursuant to this Agreement.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(df) In the event the Surviving Corporation that Buyer 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 substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision Buyer shall be made take all necessary action so that the successors and or assigns of the Surviving Corporation Buyer shall assume succeed to the obligations set forth in this Section 5.45.06.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Stock Purchase Agreement (GoLogiq, Inc.), Stock Purchase Agreement (Recruiter.com Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws Limited Liability Company Agreement (or similar organizational document) of the Surviving Corporation and the organizational documents of each of its subsidiaries Company shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as Article Eighth of the date Certificate of this AgreementIncorporation of the Company, 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 affect adversely the rights thereunder of individuals who who, at any time from and after the date of this Agreement and or prior to and including the Effective Time Time, were directors, officers, employees, fiduciaries or agents of XETA the Company or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)Subsidiaries.
(b) From and after After the Effective Time, Parent and the Surviving Corporation Company shall, jointly and severally, to the fullest extent permitted under Applicable applicable Law, indemnifyindemnify and hold harmless, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary director and agent officer of XETA the Company and each of its subsidiaries Subsidiary (collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") against all costs and expenses (including attorneys’ ' fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (includingagent, without limitation, any claim arising out of this Agreement occurring on or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest same extent permitted under Applicable Law (and shall pay any expenses as provided in advance the Certificate of Incorporation of the final disposition of Company or any such action other applicable contract or proceeding to each Indemnified Party to agreement in effect on the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) Parent or the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, Surviving Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Surviving Corporation Company, promptly after statements therefor are received (provided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification) and (ii) the Surviving Corporation Company shall use reasonable best efforts cooperate in the vigorous defense of any such matter; providedPROVIDED, howeverHOWEVER, that neither Parent nor the Surviving Corporation Company shall not be liable for any settlement effected without its the Surviving Company's written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and providedPROVIDED, furtherFURTHER, that neither Parent nor the Surviving Corporation Company shall not be obligated pursuant to this subsection (bSection 6.05(b) to pay the fees and expenses of more than one counsel (plus appropriate local counselselected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single action unless there is, as determined by counsel except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any extent that two or more Indemnified Parties, in which case of such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at shall have conflicting interests in the expense outcome of the Surviving Corporationsuch action; and providedPROVIDED, furtherFURTHER, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-six year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for The Surviving Company shall either (i) cause to be obtained at the Effective Time "tail" insurance policies with a claims period of at least six years after from the Effective Time with respect to directors' and officers' liability insurance in amount and scope at least as favorable as the Company's existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six years from the Effective Time, the Surviving Corporation shall maintain in effect if available, the current directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company (provided, PROVIDED that the Surviving Corporation Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no not less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coveragefavorable) with respect to matters occurring prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall the Surviving Corporation Company be required to expend pursuant to this Section 5.4(c6.05(c) more than an amount per year equal to 300250% of current annual premiums paid by XETA the Company for such insurance andinsurance; PROVIDED, HOWEVER, that in the event the cost of an expiration, termination or cancellation of such coverage shall exceed that amountcurrent policies, Purchaser or the Surviving Corporation Company shall purchase be required to obtain as much coverage as is possible under substantially similar policies for such amountmaximum annual amount in aggregate annual premiums. The Company represents that such current annual premium amount is set forth in Section 6.05(c) of the Company Disclosure Schedule.
(d) In the event Parent or the Surviving Corporation Company 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 merger, or (ii) transfers all or 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 Parent or the Surviving Corporation Company, as the case may be, shall assume succeed to the obligations set forth in this Section 5.46.05.
(e) In the event that Parent shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees Company to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent all of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation Company under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise6.05.
Appears in 2 contracts
Samples: Merger Agreement (Prime Hospitality Corp), Merger Agreement (Prime Hospitality Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Except for any Claim, cause of incorporation and bylaws action or demand of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationany kind brought by a regulatory or governmental authority, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six three years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Premier shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of Xxxxx or a Xxxxx Subsidiary Bank (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA Premier, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions Xxxxx or omissions a Xxxxx Subsidiary Banks if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, Time (the Surviving Corporation shall“Indemnified Liabilities”), to the fullest extent permitted that such Indemnified Parties were entitled to indemnification under Applicable Law, indemnify, hold harmless applicable Delaware and advance expenses federal law and under Xxxxx’x Certificate of Incorporation and Bylaws. This right of indemnification shall include the right to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts be paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if it shall be adjudicated or determined that such Indemnified Party is not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under Applicable Law). In the event this Section 3.31 upon learning of any Claim, shall notify Premier (but the failure so to notify Premier shall not relieve it from any liability which it may have under this Section 3.31, except to the extent such claim, action, suit, proceeding or investigation, (ifailure materially prejudices Premier) and shall deliver to Premier the Indemnified Parties may retain counsel (including local counsel) satisfactory undertaking referred to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4previous sentence.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Premier 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Premier shall assume the obligations set forth in this Section 5.43.31.
(ec) In To the event that the Surviving Corporation should failextent it is reasonably available, at any time from and after Premier shall maintain, or shall cause Premier State Banks to maintain, in effect for three years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Xxxxx (provided, that Premier may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall Premier be required to expend pursuant to this Section 3.31(c) more than 150% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by Xxxxx with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Premier shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, Xxxxx agrees in order for Premier to fulfill its agreement to provide directors and officers liability insurance policies for three years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(fd) The obligations of Parent and the Surviving Corporation Premier provided under this Section 5.4 shall not 3.31 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Premier directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwisePremier.
Appears in 2 contracts
Samples: Merger Agreement (Abigail Adams National Bancorp Inc), Merger Agreement (Premier Financial Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Company, and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall(each, an "Indemnifying Party"), shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the fullest extent permitted under Applicable Lawdate hereof or who becomes prior to the Effective Time, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each the Company or any of its subsidiaries Subsidiaries (collectively, the “"Indemnified Parties”") against all losses, claims, damages, costs and expenses (including attorneys’ ' fees), judgmentsliabilities, fines, losses, claims, damages, inquiries, liabilities judgments and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, or arises in whole or in part out of, the fact that such Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries and (i) relates to or arises out of any action or omission occurring or allegedly occurring at or prior to the Effective Time, or (ii) is based in whole or in part on, arises in whole or in part out of, or pertains in whole or in part to, this Agreement or the transactions contemplated hereby, in each case to the full extent a corporation is permitted under applicable law to indemnify its own directors or officers, as the case may be; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising prior to or after the Effective Time), the Indemnifying Parties will pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by applicable law. To the extent that any indemnification is sought pursuant to this Section 6.5(a), the Indemnified Party will promptly notify the Parent of any claim, action, suit, proceeding, or investigation for which it may seek indemnification under this Section 6.5; and in the event of any such claim, action, suit, proceeding, or investigation (whether arising before or after the Effective Time), whether civil(i) Parent or the Surviving Corporation will have the right to assume the defense thereof, criminaland neither Parent nor the Surviving Corporation will be liable to such Indemnified Parties for any legal expenses of other counsel subsequently incurred thereafter by such Indemnified Parties in connection with the defense thereof, administrative or investigativeexcept that an Indemnified Party will have the right to retain separate counsel, arising out reasonably acceptable to the Parent, at the expense of or pertaining the Indemnifying Party if the named parties to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from include both the Indemnified Party to whom expenses are advanced and the Company or Parent, or their respective successors, and the representation of an undertaking to repay such advances as required parties by the same counsel would be proscribed under Applicable Law). In the event applicable standards of any such claim, action, suit, proceeding or investigationprofessional conduct; provided that, (i) neither the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by Parent nor the Surviving Corporation promptly after statements therefor are received and will be responsible for the legal expenses of more than one law firm in connection with any one matter, (ii) the Surviving Corporation shall use reasonable best efforts Indemnified Parties will cooperate in the vigorous defense of any such matter; provided, however, that and (iii) neither the Parent nor the Surviving Corporation shall not will be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned)consent; and provided, furtherhowever, that notwithstanding the foregoing, neither the Parent nor the Surviving Corporation will have any obligation under this Section 6.5 to indemnify an Indemnified Party when and if a court of competent jurisdiction ultimately determines, and such determination becomes final, that the Surviving Corporation shall not be obligated pursuant to this subsection indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(b) Except as required by applicable Law or legal process, Parent, Sub and the Company will not take any action so as to pay amend, modify or repeal the fees and expenses provisions for exculpation of more than one counsel directors or indemnification of directors or officers contained in the articles of incorporation or bylaws (plus appropriate local counselor other comparable charter documents) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; Corporation and provided, further, that, its Subsidiaries in such a manner as would adversely affect in any material respect the event that rights of any claim for indemnification is asserted individual who shall have served as a director or made officer of the Company or any of its Subsidiaries prior to the Effective Time to be exculpated or within to be indemnified by such six-year period, all rights to indemnification corporations in respect of their serving in such claim shall continue until capacities prior to the final disposition of such claimEffective Time. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party Company will honor in enforcing accordance with their respective terms each of the indemnity agreements between the Company and other obligations provided each of its directors as in effect on the date of this Section 5.4Agreement and shall not terminate such agreements prior to the Effective Time.
(c) From The Company shall, and after the consummation of the Offer, Parent shall cause the Company to, until the sixth anniversary of the Effective Time and for so long thereafter as any claim asserted prior to such date has not been fully adjudicated by a period court of six years after the Effective Timecompetent jurisdiction, the Surviving Corporation shall maintain cause to be maintained in effect the current policies of directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company and its Subsidiaries as of the date hereof (provided, that the Surviving Corporation may substitute therefor or policies of providing at least the same coverage amounts and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coveragethe insured parties) with respect to matters occurring claims arising from facts or events that occurred or are alleged to have occurred at or prior to the Effective Time; providedprovided that the Company shall endeavor to obtain such coverage at the lowest premium cost reasonably available and that the Company shall not, however, that in no event and Parent shall not be obligated to cause the Surviving Corporation be required to expend pursuant to this Section 5.4(cto, pay an aggregate (whether over time or on a one-time basis) more than an amount per year equal to 300% premium in excess of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount$600,000.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the The provisions of this subsection (e) Section are intended to be a primary obligation of Parent and not merely a guarantee by Parent of for the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to the rights of third-party beneficiaries undershall be enforceable by, this Section 5.4). The rights of each Indemnified Party hereunder and each party entitled to insurance coverage under paragraph (c) above, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights such an Indemnified Party may have under the charter ABCA, any indemnity agreement, the articles of incorporation or bylaws of XETAthe Surviving Corporation or any of its Subsidiaries, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Delchamps Inc), Merger Agreement (Jitney Jungle Stores Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationany threatened or actual claim, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreementaction, which provisions shall not be amendedsuit, repealed proceeding or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorsinvestigation, officerswhether civil, employeescriminal or administrative, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the matters contemplated by date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any Subsidiary (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any Subsidiary, or is or was serving at the request of the Company or any Subsidiary as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement).
(b) From , any agreement or document contemplated hereby or delivered in connection herewith, or any of the transactions contemplated hereby, or thereby whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time, the Surviving Corporation shalland Parent shall indemnify and hold harmless, as and to the fullest full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law; provided, however, that none of the Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld or delayed); provided, further, that the Company, the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. The defense of any claim, suit, proceeding or investigation that is subject to this Section 6.6 shall be conducted by legal counsel reasonably satisfactory to the Indemnified Parties and to the Company (or the Surviving Corporation and the Parent after the Effective Time). Any Indemnified Party wishing to claim indemnification under Applicable Lawthis Section 6.6(a), indemnifyupon learning of any such claim, hold harmless action, suit, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation and advance expenses Parent thereof; provided that the failure to so notify shall not affect the obligations of the Company, the Surviving Corporation and Parent except to the extent, if any, such failure to promptly notify materially prejudices such party.
(b) Parent and Merger Sub each agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, each present and former director, officer, employee, fiduciary and agent of XETA the Company and each of its subsidiaries the Subsidiaries provided for in the respective charters or bylaws (collectively, the “Indemnified Parties”or other applicable organizational documents) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid or indemnification agreements listed in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any Section 6.6(b) of the Transactions), whether occurring before Company Disclosure Schedule or after otherwise in effect as of the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, date hereof shall continue in full force and effect for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that all rights to indemnification in no event respect of any claims (each a “Claim”) asserted or made within such period shall continue until the Surviving Corporation be required final disposition of such Claim. From and after the Effective Time, Parent and Merger Sub each also agree to expend pursuant indemnify and hold harmless the present and former officers and directors of the Company and the Subsidiaries in respect of acts or omissions occurring prior to this Section 5.4(c) more than an amount per year equal the Effective Time to 300% of current annual premiums paid by XETA for such insurance and, the extent provided in the event respective charters or bylaws (or other organizational documents) of the cost Company and the Subsidiaries or any written indemnification agreements between the Company and/or one or more Subsidiaries and such officers and directors as listed in Section 6.6(b) of such coverage shall exceed that amountthe Company Disclosure Schedule, unless otherwise prohibited by law.
(c) Prior to the Effective Time, the Surviving Corporation Company shall purchase a non-cancelable extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage for the Company’s directors and officers in the same form as much presently maintained by the Company, which shall provide such directors and officers with coverage as possible for such amountsix years following the Effective Time of not less than the existing coverage under, and have other terms not less favorable to, the insured persons than the directors’ and officers’ liability insurance coverage presently maintained by the Company.
(d) The obligations under this Section 6.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.6 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnities to whom this Section 6.6 applies shall be third party beneficiaries of this Section 6.6 and shall be entitled to enforce the covenants contained herein).
(e) In the event Parent or the Surviving 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 corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall Corporation, as the case may be, assume the obligations set forth in this Section 5.46.6.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Carreker Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.8.1. For a period of six (6) years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, BMBC shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer or director of RBPI or a RBPI Subsidiary (the “Indemnified Parties”) against all losses, employeesclaims, fiduciaries damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA BMBC, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director or officer of actions RBPI or omissions a RBPI Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by RBPI under Applicable Lawthe PBCL and under RBPI’s articles of incorporation and bylaws or equivalent governing documents of any RBPI Subsidiary, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Timeapplicable, in each case to as in effect on the fullest extent permitted under Applicable Law (and date hereof. BMBC shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by RBPI under Applicable Law, the PBCL and under RBPI’s articles of incorporation upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if such Indemnified Party shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.8.1 upon learning of any Claim, shall notify BMBC (but the failure so to notify BMBC shall not relieve it from any liability which it may have under this Section 7.8.1, except to the extent such failure prejudices BMBC) and shall deliver to BMBC the undertaking referred to in the previous sentence.
7.8.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either BMBC or any of its successors or assigns (ia) consolidates with or merges into any other person and shall not be the continuing or surviving company bank or entity of such consolidation or merger or (iib) transfers all or 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 Corporation BMBC shall assume the obligations set forth in this Section 5.47.8.
7.8.3. BMBC shall maintain, or shall cause BMT to maintain, in effect for six (e6) In the event that the Surviving Corporation should fail, at any time from and after years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of RBPI (provided, that BMBC may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall BMBC be required to expend per year pursuant to this Section 7.8.3 more than one hundred fifty percent (150%) of the foregoing obligations set forth in this Section 5.4annual cost currently expended by RBPI with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, BMBC shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, RBPI agrees in order for BMBC to fulfill its agreement to provide directors’ and officers’ liability insurance policies for six (6) years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.8.4. The obligations of Parent and the Surviving Corporation BMBC provided under this Section 5.4 shall not 7.8 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against BMBC directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary their respective heirs and agent (it being expressly agreed that the directors, officers, employees, fiduciaries representatives and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseBMBC.
Appears in 2 contracts
Samples: Merger Agreement (Royal Bancshares of Pennsylvania Inc), Merger Agreement (Bryn Mawr Bank Corp)
Directors’ and Officers’ Indemnification and Insurance. 7.9.1. NYB shall maintain in effect for six (a6) The certificate years following the Effective Time, the current directors’ and officers’ liability insurance policies maintained by Synergy (provided, that NYB may substitute therefor policies of incorporation at least the same coverage containing terms and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no conditions which are not materially less favorable to the persons covered thereby favorable) with respect to exculpationmatters occurring prior to or at the Effective Time; provided, indemnification and advancement of expenses than are set forth however, that in no event shall NYB be required to expend in the certificate of incorporation and bylaws of XETA as aggregate pursuant to this Section 7.9.1 more than 150% of the date annual cost currently expended by Synergy with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of this Agreementthe annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, which provisions NYB shall not be amended, repealed or otherwise modified maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a period of premium equal to the Maximum Amount. In connection with the foregoing, Synergy agrees in order for NYB to fulfill its agreement to provide directors and officers liability insurance policies for six years from to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the Effective Time in reporting of any manner that would affect adversely the rights thereunder of individuals who at any time prior claims.
7.9.2. In addition to 7.9.1, from and after the Effective Time, NYB shall indemnify and hold harmless each person who is now, or who has been at any time before the date of this Agreement and to and including hereof, or who becomes before the Effective Time were directorsTime, officersan officer or director of Synergy (the “Indemnified Parties”) against all losses, employeesclaims, fiduciaries damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA NYB, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director or officer of actions Synergy or omissions a Synergy Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, Time (the Surviving Corporation shall“Indemnified Liabilities”), to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent Synergy’s Certificate of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened Incorporation or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case Bylaws to the fullest extent permitted under Applicable Law (and by applicable law. NYB shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest full extent permitted under Applicable Law, by applicable state or Federal law upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if the Indemnified Party shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.2 upon learning of any Claim, shall notify NYB (but the failure so to notify NYB shall not relieve it from any liability which it may have under this Section 7.9.2, except to the extent such failure materially prejudices NYB) and shall deliver to NYB the undertaking referred to in the previous sentence. In the event of any such claimClaim (whether arising before or after the Effective Time) (1) after the Effective Time NYB shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption NYB shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, actionexcept that if NYB elects not to assume such defense, suitor counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether or not any have yet actually arisen) issues which raise conflicts of interest between NYB and the Indemnified Parties, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) reasonably satisfactory to them, and NYB shall pay the reasonable fees and expenses of which such counsel for the Indemnified Parties, (2) NYB shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be paid by the Surviving Corporation promptly after as statements therefor are received and except to the extent the interests of such Indemnified Parties may conflict, (ii3) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation NYB shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); , and provided, further, that the Surviving Corporation (4) no indemnification shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel available to the Indemnified Parties, under applicable standards extent the person seeking indemnification has not acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of professional conduct, a conflict Synergy or a Synergy Subsidiary or its successor, and with respect to any criminal proceeding, had no reasonable likelihood cause to believe his conduct was unlawful. The determination shall be made by a majority vote of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense quorum consisting of the Surviving Corporation; and provided, further, that, Directors of NYB who are not involved in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claimproceeding.
7.9.3. The Surviving Corporation NYB shall pay all reasonable expenses, expenses (including attorneys’ fees, ) that may be reasonably incurred by any an Indemnified Party in enforcing the indemnity and other obligations provided in of NYB under this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time7.9; provided, however, that in no event NYB shall the Surviving Corporation only be required to expend pursuant pay such expenses contemplated if it is first determined by final judicial decision that such Indemnified Party is entitled to indemnity under this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount7.9.
(d) 7.9.4. In the event the Surviving Corporation that either NYB or any of its successors or assigns (i) consolidates with or merges into any other person and shall to the extent not be the continuing or surviving company or entity assumed by operation of such consolidation or merger or (ii) law, transfers all or substantially all 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 Corporation NYB shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) 7.9.5. The obligations of Parent and the Surviving Corporation NYB provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against NYB directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseNYB.
Appears in 2 contracts
Samples: Merger Agreement (New York Community Bancorp Inc), Merger Agreement (New York Community Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Until the sixth anniversary of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Company and Parent, and from and after the Effective Time the Surviving Corporation shall(each, an "Indemnifying Party"), shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the fullest extent permitted under Applicable Lawdate hereof, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each the Company or any of its subsidiaries Subsidiaries (collectively, the “"Indemnified Parties”") against all losses, claims, damages, costs and expenses (including attorneys’ fees' fees and expenses), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement or judgments or amounts that are paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, for or arises in whole or in part out of, the fact that such Indemnified Party is or was a period director or officer of six years after the Company or any of its Subsidiaries (including service as a fiduciary of any employee benefit plan), whether pertaining to any matter existing or occurring at or prior to the Effective Time, in each case Time to the fullest extent permitted under Applicable Law by Delaware law or based in whole or in part on this Agreement or the transactions contemplated hereby (and "Indemnified Liabilities"); provided that no Indemnifying Party shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement of any claim effected without its written consent (consent, which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, provided further that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is claims are asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of any such claim claims shall continue until disposition of any and all such claims. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any 36 41 Indemnified Party (whether arising prior to or after the Effective Time), (w) the Indemnifying Parties will pay expenses in advance of the final disposition of any such claim, action suit, proceeding or investigation to each Indemnified Party to the full extent permitted by applicable law provided that the person to whom expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Indemnifying Parties; (y) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to the final sentence of this paragraph) promptly as statements therefor are received; and (z) the Indemnifying Parties shall use all commercially reasonable efforts to assist in the vigorous defense of any such matter. Any Indemnified Party wishing to claim indemnification under this Section, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Indemnifying Parties, but the failure so to notify an Indemnifying Party shall not relieve it from any liability which it may have under this paragraph except to the extent such failure materially and irreparably prejudices such party.
(b) The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing (i) until the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period sixth anniversary of six years after the Effective Time, cause to be maintained in effect, to the Surviving Corporation shall maintain in effect extent available, the current policies of directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company and its Subsidiaries as of the date hereof (provided, that the Surviving Corporation may substitute therefor or policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous in any material respect to such officers the insured parties) or (ii) purchase a policy of directors' and directorsofficers' liability insurance of at least the same coverage and amounts and containing terms that are no less advantageous in any material respect to the insured parties and for a term of six years after the Effective Time, so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring claims arising from facts or events that occurred prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required obligated to expend in order to maintain or procure insurance coverage pursuant to clause (i) of this Section 5.4(c) more than an paragraph any amount per year equal to 300annum in excess of 125% of current annual premiums the last premium paid by XETA for the Company prior to the date of this Agreement, and if the annual premium of such insurance and, in the event the cost of such coverage shall exceed exceeds that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(dc) In The provisions of this Section are intended to be for the event benefit of, and shall be enforceable by, each Indemnified Party and each party entitled to insurance coverage under paragraph (b) above, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights an Indemnified Party may have under the certificate or articles of incorporation or bylaws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise.
(d) In the event Parent, the Company or the Surviving Corporation 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 merger, (ii) transfers all or substantially all of its properties and assets to any personperson or (iii) consummates a transaction resulting in the transfer of more than a majority of its capital stock (whether by means of reverse triangular merger, share exchange or otherwise), then, and in each such case, proper provision shall be made so that the successors and assigns of Parent, the Company or the Surviving Corporation Corporation, as the case may be, shall assume the obligations set forth in this Section 5.4.
paragraphs (ea) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention b) of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving CorporationSection.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Proxima Corp), Merger Agreement (Ask Asa)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Effective Time, the Surviving Company and its Subsidiaries shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under the NYBCL, honor and fulfill in all respects the obligations of the Company and the Company Subsidiaries under any and all indemnification agreements between the Company or any Company Subsidiary and any of their respective present or former directors and officers (collectively, the “Indemnified Parties”). In addition, the certificate of incorporation and bylaws by-laws of the Surviving Corporation and the organizational documents of each of its subsidiaries Company shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, exculpation and indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of Company Charter or the date of this AgreementCompany By-Laws, 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 affect adversely the rights thereunder of individuals who who, at any time from and after the date of this Agreement and or prior to and including the Effective Time Time, were directors, officers, employees, fiduciaries or agents of XETA the Company or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)Company Subsidiary.
(b) From and For a period of six (6) years after the Effective Time, Parent and the Surviving Corporation Company shall, jointly and severally, to the fullest extent permitted under Applicable applicable Law, indemnify, indemnify and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining relating to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions)agent, whether occurring on or before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to . To the fullest extent permitted under Applicable Law (by Law, Parent and shall the Surviving Company shall, jointly and severally, pay any all expenses of each Indemnified Party in advance of the final disposition of any such action or proceeding Action, subject to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to indemnification. In the event of any such claim, action, suit, proceeding or investigationAction, (i) Parent or the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, Surviving Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Surviving Corporation Company, promptly after statements therefor are received and received, (ii) neither Parent nor the Surviving Corporation Company shall use reasonable best efforts settle, compromise or consent to the entry of any judgment in any pending or threatened Action to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents, and (iii) Parent and the Surviving Company shall cooperate in the vigorous defense of any such matter; provided, however, that neither Parent nor the Surviving Corporation Company shall not be liable for any settlement effected without its the Surviving Company’s written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, provided further that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The rights of each Indemnified Party under this Section 6.04(b) shall be in addition to any rights such person may have under the certificate of incorporation or by-laws (or similar organizational documents) of the Company and the Surviving Corporation shall pay all reasonable expensesCompany or any of their Subsidiaries, including attorneys’ fees, that may be incurred by or under any Law or under any indemnification agreement of any Indemnified Party in enforcing with the indemnity and other obligations provided in this Section 5.4Company or any Company Subsidiary.
(c) From and for The Surviving Company shall either (i) cause to be obtained at the Effective Time “tail” insurance policies with a claims period of at least six (6) years after from the Effective Time with respect to directors’ and officers’ liability insurance in amount and scope at least as favorable as the Company’s existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six (6) years from the Effective Time, the Surviving Corporation shall maintain in effect if available, the current directors’ and officers’ liability insurance policies maintained by XETA (provided, the Company; provided that the Surviving Corporation Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no not less advantageous to such officers and directors, so long as such substitution does not result favorable in gaps or lapses in coverage) the aggregate with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation Company be required to expend pursuant to this Section 5.4(c6.04(c) more than an amount per year equal to 300% of current annual premiums paid by XETA the Company for such insurance and, insurance; provided further that in the event the cost of an expiration, termination or cancellation of such coverage shall exceed that amountcurrent policies, Parent or the Surviving Corporation Company shall purchase be required to obtain as much coverage as is possible under substantially similar policies for such amountmaximum annual amount in aggregate annual premiums.
(d) In the event Parent or the Surviving Corporation Company or any of its their respective successors or assigns (i) consolidates or amalgamates with or merges into any other person and shall not be the continuing or surviving company or entity of such consolidation consolidation, amalgamation or merger merger, or (ii) transfers all or 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 Parent or the Surviving Corporation Company, as the case may be, shall assume succeed to the obligations set forth in this Section 5.46.04.
(e) In the event that Parent shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees Company to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent all of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation Company under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise6.04.
Appears in 2 contracts
Samples: Merger Agreement (Danaher Corp /De/), Merger Agreement (Pall Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminalcriminal or administrative, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of including any such claim, action, suit, proceeding or investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to themtogether, the reasonable fees and expenses of which shall be paid “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties Person in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made capacity taken prior to the Effective Time Time, the Parent and the Surviving Corporation will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or within required by applicable Law, and as may otherwise be required by the Company Organizational Documents (or any similar organizational document) of the Company or any of its Subsidiaries, when applicable, and any indemnity agreements applicable to any such six-year periodIndemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, all rights to indemnification in respect each case, in effect on the date of such claim shall continue until this Agreement, against any losses, claims, damages, liabilities, costs, legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually incurred by such Indemnified Party in connection with such claim. , action, suit, proceeding or investigation, subject to the Surviving Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined by a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law.
(b) The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party will (i) maintain in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and effect for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect if available, the current policies of directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts containing terms and conditions that are no not less advantageous in the aggregate to such the directors and officers of the Company) or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and directorsamounts and containing terms and conditions that are not less advantageous in the aggregate to the directors and officers of the Company, so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective Time; provided, however, however that in no event shall will the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300annual premium for such coverage in excess of 150% of current the last annual premiums premium paid by XETA the Company for such insurance andprior to the date of this Agreement (the “Maximum Premium”); provided further that the officers and directors of the Company or any Subsidiary may be required to make application and provide customary representations and warranties to the Surviving Corporation’s insurance carrier for the purpose of obtaining such insurance. If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the event the cost of such coverage shall exceed that amountMaximum Premium, the Surviving Corporation will obtain that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium. The Company represents that its current annual premium for director and officer insurance is set forth in Section 6.8(b) of the Company Disclosure Letter. The provisions of this Section 6.8(b) shall purchase be deemed to have been satisfied if prepaid policies (which are not subject to cancellation) have been obtained by the Surviving Corporation for purposes of this Section 6.8, which policies provide such directors and officers with the coverage described in this Section 6.8(b) for an aggregate period of not less than six years with respect to claims arising from facts, events, acts or omissions occurring at or prior to the Effective Time, including, without limitation, in respect of the transactions contemplated by this Agreement.
(c) The provisions of this Section 6.8 will survive the Closing and, after the Effective Time, are intended to be for the benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and their rights under this Section 6.8 are in addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or similar organizational document of the Surviving Corporation or any of its Subsidiaries or otherwise). Any Indemnified Party wishing to claim indemnification under Section 6.8(a), upon learning of any claim, action, suit, proceeding or investigation described above, will promptly notify Purchaser; provided that failure so to notify will not affect the obligations of Purchaser under Section 6.8(a) unless and only to the extent that Purchaser is actually and materially prejudiced as much coverage as possible for such amounta consequence.
(d) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their respective certificates of incorporation or bylaws (or similar organizational document) for a period of six years after the Effective Time, provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, in the aggregate with respect to each such entity, no less advantageous to the intended beneficiaries than the corresponding provisions contained in such organizational documents as of the date of this Agreement.
(e) In the event that the Surviving Corporation 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 Persons, or (ii) transfers all or substantially all of its properties and or assets to any personPerson, then, then and in each such case, proper provision shall will be made so that the successors and applicable successors, assigns of the Surviving Corporation shall or transferees assume the obligations set forth in this Section 5.46.8.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any Person who is now, or has been at any time prior to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from who becomes prior to the Effective Time in any manner that would affect adversely Time, a director, officer, agent or employee of the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Seller or any of its subsidiaries Subsidiaries (the “Indemnified Parties”) is, or is threatened to be, made a party based in respect whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, agent or employee of actions the Seller, any of the Seller’s Subsidiaries or omissions occurring at any of their respective predecessors or prior to (ii) this Agreement or the Effective Time (includingother Transaction Documents or any of the transactions contemplated hereby or thereby, without limitation, the matters contemplated by this Agreement).
(b) From and whether in any case asserted or arising before or after the Effective Time, the Surviving Corporation shallparties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, the Buyer shall indemnify and hold harmless, as and to the fullest extent permitted under Applicable Lawby law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “such Indemnified Parties”) Party against all costs and expenses (including attorneys’ fees), judgments, fines, any losses, claims, damages, inquiriesliabilities, liabilities costs, expenses (including advancing reasonable attorneys’ fees and settlement expenses as and when incurred prior to the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), whether civilthe Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer; provided, criminalhowever, administrative or investigative, arising out of or pertaining that (w) the Buyer shall have the right to any action or omission assume the defense thereof (provided the Buyer confirms in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of writing to the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case Indemnified Party its obligations to indemnify such party to the fullest extent permitted under Applicable Law (by law and provided the Buyer is at least “adequately capitalized” as defined in the relevant prompt corrective action regulations) and upon such assumption the Buyer shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if the Buyer elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Buyer and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer, and the Buyer shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (x) the Buyer shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties, unless the proposed counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest among such parties, in which case the Buyer shall pay the reasonable fees and expenses of one additional counsel to the extent necessary to avoid such conflict, (y) the Buyer shall not be liable for any expenses in advance of settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and (z) the final disposition of Buyer shall have no obligation under this Section 6.7(a) to any such action or proceeding to each Indemnified Party when and if, and only to the fullest extent permitted extent, a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim Indemnification under Applicable Lawthis Section 6.7, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event learning of any such claim, action, suit, proceeding or investigation, shall notify the Buyer thereof, provided, that the failure to so notify shall not affect the obligations of the Buyer under this Section 6.7 except to the extent such failure to notify materially prejudices the Buyer. The Buyer’s obligations under this Section 6.7 shall continue in full force and effect for a period of six (i6) years from the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterEffective Time; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of any claim asserted or made within such claim period shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(cb) From and for a period of six years after the Effective Time, the Surviving Corporation Buyer shall maintain in effect the current Seller’s existing directors’ and officers’ liability insurance policies maintained (the “D&O Insurance”) covering Persons who are currently covered by XETA Seller’s D&O Insurance for six (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage6) with respect to matters occurring prior to years following the Effective TimeTime on terms not less favorable than those in effect on the date hereof and shall at the Effective Time provide evidence to Seller of such extension of coverage; provided, however, that Buyer may substitute therefor policies providing equivalent coverage and containing terms and conditions no less favorable than those in effect on the date hereof; provided, that in no event shall the Surviving Corporation Buyer be required to expend pursuant to this Section 5.4(c) more than annually an amount per year equal to 300in excess of 150% of current the annual premiums currently paid by XETA Seller (which current amount is set forth in Section 6.7 of the Seller Disclosure Schedule) for such insurance and(the “Insurance Amount”), in and provided further that if Buyer is unable to maintain such policy (or such substitute policy) as a result of the event the cost of such coverage preceding proviso, Buyer shall exceed that amount, the Surviving Corporation shall purchase obtain as much coverage comparable insurance as possible is available for such amountthe Insurance Amount.
(dc) In the event the Surviving Corporation Buyer 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 merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall Buyer assume the obligations set forth in this Section 5.4section.
(ed) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the The provisions of this subsection (e) Section 6.7 are intended to be a primary obligation of Parent and not merely a guarantee by Parent of for the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to the rights of third-party beneficiaries underenforceable by, this Section 5.4). The rights of each Indemnified Party hereunder and his or her heirs and representatives, and nothing herein shall be in addition to affect any other indemnification rights such that any Indemnified Party and his or her heirs and representatives may have under the charter Articles of Incorporation or bylaws Bylaws of XETAthe Seller or the equivalent documents of any of the Seller’s Subsidiaries, under Oklahoma Law any contract or otherwiseapplicable law.
Appears in 1 contract
Samples: Merger Agreement (Boston Private Financial Holdings Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.9.1. For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, FNFG shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of GLB or a GLB Subsidiary (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA FNFG, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions GLB or omissions a GLB Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable state or Federal law, indemnifyFNFG’s Certificate of Incorporation and Bylaws, hold harmless and advance expenses to each present under GLB’s Certificate of Incorporation or Charter and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. FNFG shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest full extent permitted under Applicable Law, by applicable state or Federal law upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.1 upon learning of any Claim, shall notify FNFG (but the failure so to notify FNFG shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure materially prejudices FNFG) and shall deliver to FNFG the undertaking referred to in the previous sentence.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either FNFG 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation FNFG shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. FNFG shall maintain, at any time from and after or shall cause First Niagara Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of GLB (provided, that FNFG may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense matters occurring at or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled prior to the rights of third-party beneficiaries underEffective Time; provided, this Section 5.4). The rights of each Indemnified Party hereunder however, that in no event shall FNFG be in addition required to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.expend pursuant to this
Appears in 1 contract
Samples: Merger Agreement (First Niagara Financial Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time since February 1, 2006 or who becomes prior to the Effective Time an officer or director of the Company and its Subsidiaries (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company’s Charter Documents, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and set forth on Section 5.10 of the Company’s Disclosure Schedule (collectively, the “Indemnification Documents”), shall not be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim made during such period, until the rights thereunder final disposition of individuals who at any time from and such proceeding or claim.
(b) For the greater of six (6) years after the date of this Agreement and to and including the Effective Time were directorsor, officerswith respect to any Indemnified Party that is party to an Indemnification Document, employeesthe maximum period under which rights to indemnification are provided under such Indemnification Document, fiduciaries to the fullest extent permitted under applicable Law and on the terms and conditions set forth in the applicable Indemnification Document, the Surviving Corporation (the “Indemnifying Party”) shall indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or agents of XETA or any of its subsidiaries in respect part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
(b) From , and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance shall promptly reimburse each Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Corporation’s receipt of the final disposition of any an undertaking by such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Indemnified Party is not entitled to be paid by indemnified under applicable Law or under the Surviving Corporation promptly after statements therefor are received terms and (ii) the Surviving Corporation shall use reasonable best efforts conditions set forth in the vigorous defense of any such matterapplicable Indemnification Document; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From The Surviving Corporation shall, and for Parent shall cause the Surviving Corporation to obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years after from the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of Time with at least the same coverage and amounts and containing terms and conditions that are no not less advantageous advantageous, in the aggregate, to such the directors and officers of the Company and directorsits Subsidiaries, so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective Time; provided, however, that Time (including in no event connection with the transactions contemplated by this Agreement). The Company shall the Surviving Corporation be required have a reasonable period of time to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for review and approve such “tail” insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountpolicies.
(d) The obligations of Parent and the Surviving Corporation under this Section 5.10 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.10 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.10 applies shall be third party beneficiaries of this Section 5.10, each of whom may enforce the provisions of this Section 5.10), unless such modification is required by applicable Law.
(e) In the event Parent, the Surviving Corporation 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations of Parent or the Surviving Corporation, as the case may be, set forth in this Section 5.4.
(e) In 5.10. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the event Company or its officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.45.10 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Pyramid and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Delaware Merger Subsidiary agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company and Pyramid now existing in favor of each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Merger Effective Time an officer or director of (i) the Company and its subsidiaries (each, a "Company Indemnified Party"), as provided in the Company’s certificate of incorporation and incorporation, bylaws of XETA or the DGCL, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other contracts in effect on the date hereof and disclosed in Section 6.10 of the Company Disclosure Schedule, shall not be amendedassumed by the Surviving Corporation in the Merger at the Merger Effective Time, repealed (ii) Pyramid and its subsidiaries (each, a "Pyramid Indemnified Party" and collectively with the Company Indemnified Party, the “Indemnified Parties”), as provided in Pyramid’s Restated Articles of Incorporation, Amended and Restated Bylaws, or otherwise modified for a period of six years from the Effective Time CCC, in any manner that would affect adversely the rights thereunder of individuals who at any time from and after each case as in effect on the date of this Agreement Agreement, or pursuant to any other contracts in effect on the date hereof and to disclosed in Section 5.07 of the Pyramid Disclosure Schedule, shall be assumed by Pyramid Delaware in the Reincorporation Merger at the Reincorporation Effective Time, without further action, and including shall survive the Effective Time were directorsMerger and shall remain in full force and effect in accordance with their terms, officersand, employees, fiduciaries in the event that any proceeding is pending or agents of XETA asserted or any claim made during such period, until the final disposition of its subsidiaries in respect of actions such proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)claim.
(b) From and For six years after the Merger Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable law, Pyramid Delaware and the Surviving Corporation shall indemnify, defend and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA Company Indemnified Party and each of its subsidiaries (collectivelyPyramid Indemnified Party, the “Indemnified Parties”) as applicable, against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid fines arising in connection with any threatened whole or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising in part out of actions or pertaining to any action or omission omissions in their capacity as a director, officer, employee, fiduciary such occurring at or agent prior to the Merger Effective Time (including, without limitation, any claim arising out of including in connection with the transactions contemplated by this Agreement or any of the TransactionsAgreement), whether occurring before and shall reimburse each Company Indemnified Party and each Pyramid Indemnified Party for any legal or after the Effective Timeother expenses reasonably incurred by such Company Indemnified Party or Pyramid Indemnified Party in connection with investigating or defending any such losses, whether asserted or claimed prior toclaims, at or after the Effective Timedamages, for a period of six years after the Effective Timeliabilities, in each case fees, expenses, judgments and fines as such expenses are incurred, subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action Surviving Corporation’s or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon Pyramid Delaware's receipt from the Indemnified Party to whom expenses are advanced of an undertaking by such Company Indemnified Party or Pyramid Indemnified Party, as the case may be, to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Company Indemnified Party or Pyramid Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable law; provided, however, that the Surviving Corporation shall and Pyramid Delaware will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent consent, in the case of a Company Indemnified Party, or Pyramid Delaware's prior written consent, in the case of a Pyramid Indemnified Party (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From Pyramid Delaware shall, as to Pyramid Delaware, and the Surviving Corporation shall, as to the Surviving Corporation, (i) maintain in effect for a period of six (6) years after the Merger Effective Time, the Surviving Corporation shall maintain in effect if available, the current policies of directors’ and officers’ liability insurance policies maintained by XETA Pyramid and the Company, as applicable, immediately prior to the Merger Effective Time (provided, provided that Pyramid Delaware and the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of Pyramid and directorsthe Company and its subsidiaries when compared to the insurance maintained by Pyramid and the Company, so long as such substitution does applicable, as of the date hereof), or (ii) obtain as of the Merger Effective Time “tail” insurance policies with a claims period of six (6) years from the Merger Effective Time with at least the same coverage and amounts and containing terms and conditions that are not result less advantageous to the directors and officers of Pyramid and the Company and its subsidiaries, as applicable, in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Merger Effective TimeTime (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event shall will Pyramid Delaware or the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year a premium for such coverage in excess of $100,000.00 (the “Maximum Premium”). If such insurance coverage cannot be obtained at a premium equal to 300% of current annual premiums paid by XETA for such insurance andor less than the Maximum Premium, in the event the cost of such coverage shall exceed that amount, Pyramid Delaware and the Surviving Corporation shall purchase as much coverage as possible will obtain, and Pyramid Delaware will cause the Surviving Corporation to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for such amounta premium equal to the Maximum Premium.
(d) The obligations of Pyramid, Pyramid Delaware and the Surviving Corporation under this Section 7.16 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Company Indemnified Party or Pyramid Indemnified Party to whom this Section 7.16 applies without the consent of such affected Company Indemnified Party or Pyramid Indemnified Party, as applicable (it being expressly agreed that the Indemnified Parties to whom this Section 7.16 applies shall be third party beneficiaries of this Section 7.16, each of whom may enforce the provisions of this Section 7.16).
(e) In the event Pyramid, the Surviving 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 corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each either such case, proper provision shall be made so that the successors and assigns of Pyramid or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In 7.16. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Company Indemnified Party and any Pyramid Indemnified Party is entitled, whether pursuant to law, contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Pyramid, the event Company or their respective officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.47.16 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Pyramid Oil Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time and until the sixth anniversary of the Effective Time and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated, CR shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each of its subsidiaries Aegis or CR (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriescosts and expenses (including reasonable attorneys’ fees), liabilities Liabilities, judgments, fines and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation Legal Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based directly or indirectly (in whole or in part) on, for or arises directly or indirectly (in whole or in part) out of, the fact that such Indemnified Party is or was a period director or officer of six years after Aegis or CR, as the case may be, and relates to or arises out of any action or omission occurring at or prior to the Effective Time, Time (including in each case connection with this Agreement or any of the transactions contemplated hereby) (“Indemnified Liabilities”) to the fullest extent permitted permissible under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, provided that the Surviving Corporation CR shall not be liable for any settlement effected without its written consent (Indemnified Liabilities which consent shall not be unreasonably withheldoccur as a result of fraud or the unlawful criminal actions, delayed gross negligence or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions willful misconduct of any two Indemnified Party or more Indemnified Parties, in which case such additional counsel (including local counsel) exceed the scope of similar obligations owed by CR to its directors and officers as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, thatEffective Time. Without limiting the foregoing, in the event that any claim for indemnification such Legal Action is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by brought against any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years whether arising prior to or after the Effective Time), CR will pay expenses in advance to each Indemnified Party or promptly reimburse each Indemnified Party for such expenses as such expenses are incurred to the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained fullest extent permitted by XETA (provided, applicable Law; provided that the Surviving Corporation may substitute therefor policies Person to whom expenses are advanced provides any undertaking required by applicable Law to repay such advance if it is ultimately determined in a final, non-appealable judgment of at least the same coverage and amounts containing terms and conditions a court of competent jurisdiction that are no less advantageous such Person is not entitled to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect indemnification. Any Indemnified Party wishing to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation indemnification under this Section 5.4 5.10, upon learning of any such Legal Action, shall notify CR, but the failure so to notify CR shall not be terminated or modified in such a manner as to adversely affect relieve CR from any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (Liability which it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under this paragraph except to the charter or bylaws of XETA, under Oklahoma Law or otherwiseextent such failure actually and materially prejudices CR.
Appears in 1 contract
Samples: Merger Agreement (Code Rebel Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Buyer and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth or exculpation now existing in favor of, and all limitations on the personal liability of each present and former director, officer, employee, fiduciary or agent of Seller and its Subsidiaries provided for in the certificate of incorporation and bylaws of XETA respective organizational documents, in effect as of the date of this Agreementhereof, which provisions shall not be amended, repealed or otherwise modified continue in full force and effect for a period of six (6) years from after the Effective Time with respect to omissions or actions prior to the Effective Time. During such period, Buyer shall not amend, repeal or otherwise modify such provisions for indemnification or advances of expenses in any manner that would materially and adversely affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and prior to and including the Effective Time were directorswas a director, officersofficer, employeesemployee, fiduciaries fiduciary or agents agent of XETA or any of Seller and its subsidiaries Subsidiary in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters transactions contemplated by this Agreement), unless such modification is required by Law; provided, however, that in the event any claim or claims are asserted or made either prior to the Effective Time or within such six-year period, all rights to indemnification and advancement of expenses in respect of any such claim or claims shall continue until disposition of any and all such claims.
(b) From and after the Effective Time, Buyer and the Surviving Corporation shall, to the fullest extent permitted under Applicable applicable Law, indemnifyindemnify and hold harmless, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and or agent of XETA Seller and its Subsidiaries and their respective heirs and representatives and each such person who served at the request of its subsidiaries Seller or any Seller Subsidiary as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (each, an "Indemnified Party" and, collectively, the “"Indemnified Parties”") against all costs and expenses (including reasonable attorneys’ ' fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity capacities as a directordirectors, officerofficers, employeeemployees, fiduciary fiduciaries or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Timeagents, in each case to occurring before the fullest extent permitted under Applicable Law Effective Time (and shall pay any expenses in advance of including the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Lawtransactions contemplated by this Agreement). In Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) Buyer and the Indemnified Parties Surviving Corporation, as the case may retain counsel (including local counsel) satisfactory to thembe, shall pay, in advance of the final disposition thereof, the reasonable fees and expenses of counsel selected by any Indemnified Party, which counsel shall be paid by reasonably satisfactory to Buyer and the Surviving Corporation Corporation, as the case may be, promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterreceived; provided, however, that the Surviving Corporation shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single claim, action, suit, proceeding or investigation, unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest that would make such joint representation inappropriate, and (ii) Seller or Buyer and the Surviving Corporation, as the case may be, shall cooperate in the defense of any such matter, provided, however, that none of Seller, Buyer or the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); . The advancement of any amounts to be paid in respect of legal and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the other fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c6.7(b) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 subject to an undertaking of the Surviving Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event recipient to repay such advances if it is ultimately determined that the Surviving Corporation should fail, at any time such Person is not entitled to indemnification from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(fc) At or prior to the Effective Time, Seller shall purchase a "tail" directors' and officers' liability insurance policy (which by its terms shall survive the Merger) for its directors and officers, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable on the whole to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by Seller, so long as the aggregate cost is less than the amount set forth in Section 6.7(c) of the Seller Disclosure Letter. In the event that such amount is insufficient for such coverage, Seller may spend up to that amount to purchase such lesser coverage as may be obtained with such amount. Buyer shall, and shall cause the Surviving Corporation to, maintain such policy in full force and effect, and continue to honor the obligations thereunder.
(d) The obligations of Parent and the Surviving Corporation under this Section 5.4 6.7 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent indemnitee to whom this Section 5.4 6.7 applies without the consent of each such affected director, officer, employee, fiduciary and agent indemnitee (it being expressly agreed that the directors, officers, employees, fiduciaries and agents indemnitees to whom this Section 5.4 6.7 applies and any such indemnitees' heirs or representatives, shall be third-third party beneficiaries ofof this Section 6.7 and shall be entitled to enforce the covenants contained herein).
(e) In the event Buyer or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and entitled in each such case, to the rights extent necessary, proper provision shall be made so that the successors and assigns of third-party beneficiaries underBuyer or the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 5.4). The rights of each Indemnified Party hereunder 6.7.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in addition existence with respect to Seller or any other rights of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not in priority to or in substitution for any such Indemnified Party may have claims under any such policies, and that, for avoidance of doubt, neither Buyer nor the charter or bylaws of XETA, under Oklahoma Law or otherwiseSurviving Corporation shall be required to make any payments for such claims that are actually covered by such policies (unless such payments would be reimbursable by such insurers if and once any such claim is actually covered by such policies).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate From and after the Effective Time, the Surviving Company and its Subsidiaries shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under the MBCA, honor and fulfill in all respects the obligations of the Company and the Company Subsidiaries under any and all indemnification agreements between the Company or any Company Subsidiary and any of their respective present or former directors and officers (collectively, the “Indemnified Parties”). In addition, the articles of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries Company shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, exculpation and indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of Company Charter or the date of this AgreementCompany Bylaws, 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 affect adversely in any material respect the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorswho, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (includingTime, without limitation, were directors or officers of the matters contemplated by this Agreement)Company or any Company Subsidiary.
(b) From and For a period of six (6) years after the Effective Time, the Surviving Corporation shall, Company shall to the fullest extent permitted under Applicable applicable Law, indemnify, indemnify and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining relating to any action or omission in their capacity as a director, officer, employee, fiduciary director or agent (including, without limitation, any claim arising out officer of this Agreement the Company or any of the Transactions)Company Subsidiary, whether occurring on or before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case and to the fullest extent permitted under Applicable Law (and by Law, the Surviving Company shall pay any all expenses of each Indemnified Party in advance of the final disposition of any such action or proceeding Action, subject to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to indemnification. In the event of any such claim, action, suit, proceeding or investigationAction, (i) subject to the Indemnified Parties may retain counsel (including local counsel) satisfactory to themundertaking described in the previous sentence, the Surviving Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Surviving Corporation Company, promptly after statements therefor are received and received, (ii) the Surviving Corporation Company shall use reasonable best efforts not settle, compromise or consent to the entry of any judgment in any pending or threatened Action to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents, and (iii) the Surviving Company shall cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation Company shall not be liable for any settlement effected without its the Surviving Company’s written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, provided further that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The rights of each Indemnified Party under this Section 6.04(b) shall be in addition to any rights such person may have under the articles of incorporation or bylaws (or similar organizational documents) of the Company and the Surviving Corporation shall pay all reasonable expensesCompany or any of their Subsidiaries, including attorneys’ fees, that may be incurred by or under any Law or under any indemnification agreement of any Indemnified Party in enforcing with the indemnity and other obligations provided in this Section 5.4Company or any Company Subsidiary.
(c) From and for The Surviving Company shall either (i) cause to be obtained at the Effective Time “tail” insurance policies with a claims period of at least six (6) years after from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable, in the aggregate, as the Company’s existing policies (true and complete copies of which have been previously made available to Parent) for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six (6) years from the Effective Time, the Surviving Corporation shall maintain in effect if available, the current directors’ and officers’ liability insurance policies maintained by XETA (provided, the Company; provided that the Surviving Corporation Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directorssubstantially similar, so long as such substitution does not result in gaps or lapses in coverage) the aggregate, with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation Company be required to expend pursuant to this Section 5.4(c6.04(c) more than an amount per year equal to 300250% of current annual premiums paid by XETA the Company for such insurance andinsurance; provided further that, in the event the cost of an expiration, termination or cancellation of such coverage shall exceed that amountcurrent policies, Parent or the Surviving Corporation Company shall purchase be required to obtain as much coverage as is possible under substantially similar policies for such amountmaximum annual amount in aggregate annual premiums.
(d) In the event Parent or the Surviving Corporation Company 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 of such consolidation or merger merger, or (ii) transfers all or 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 Parent or the Surviving Corporation Company, as the case may be, shall assume succeed to the obligations set forth in this Section 5.46.04.
(e) In the event that Parent shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees Company to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent all of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation Company under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise6.04.
Appears in 1 contract
Samples: Merger Agreement (Arctic Cat Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six (6) years from after the Effective Time, ANB shall indemnify (including advancement of expenses), defend and hold harmless each director, executive officer or employee of IRBC prior to the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect (an “Indemnified Party”) against all liabilities arising out of actions or omissions occurring at upon or prior to the Effective Time (including, including without limitation, limitation the matters contemplated by transactions provided for in this Agreement)) to the extent required under the articles of incorporation and bylaws of IRBC as in effect on the date of this Agreement, subject to the limitations of applicable Law, including without limitation Section 607.0850 of the FBCA.
(b) From and after Any Indemnified Party wishing to claim indemnification under Section 8.18(a) above upon learning of any such liability or litigation, shall promptly notify ANB thereof. In the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent event of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation such litigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) ANB shall Table of Contents have the right to assume the defense thereof, and ANB shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if ANB elects not to assume such defense or counsel for the Indemnified Parties advises that there are substantive issues which raise conflicts of interest between ANB and the Indemnified Parties, the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the and ANB shall pay all reasonable fees and expenses of which such counsel for the Indemnified Parties; provided, that ANB shall be paid by the Surviving Corporation promptly after statements therefor are received and obligated to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction; (ii) the Surviving Corporation shall use reasonable best efforts Indemnified Parties will cooperate in the vigorous defense of any such matterlitigation; provided, however, that the Surviving Corporation and (iii) ANB shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned)consent; and provided, provided further, that the Surviving Corporation ANB shall not be obligated pursuant have any obligation hereunder to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party when and if a court of competent jurisdiction shall determine, and such determination shall have become final, that the indemnification of such Indemnified Party in enforcing the indemnity and other obligations manner provided in this Section 5.4for herein is prohibited by applicable Law.
(c) From and Nothing contained in this Section 8.18 shall be construed to limit any right of indemnification which any Indemnified Party has under any provision of the articles of incorporation or bylaws of IRNB, any policy of insurance maintained by IRNB, or any Contract that is specifically identified in the Schedules to this Agreement as containing such provisions.
(d) ANB shall use commercially reasonable efforts to maintain in effect for a period of six three (3) years after the Effective Time, the Surviving Corporation shall maintain in effect the current Time IRBC’s existing directors’ and officers’ liability insurance policies maintained by XETA (providedpolicy, provided that the Surviving Corporation ANB may substitute therefor (i) policies of at least the same coverage and amounts containing terms and conditions that (excluding deductibles) which are substantially no less advantageous to such IRNB’s officers and directors, so long as such substitution does not result in gaps directors or lapses in coverage(ii) with respect to matters occurring the consent of IRBC (given prior to the Effective Time) any other policy with respect to claims arising from facts or events which occurred prior to the Effective Time and covering persons who are currently covered by such insurance; provided, however, that in no event shall ANB be obligated to make aggregate premium payments for such three (3) year period in respect of such policy (or coverage replacing such policy) which exceed, for the Surviving Corporation be required portion related to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300IRBC’s directors and officers, 200% of the highest annual premium payments during the last three (3) years on IRBC’s current annual premiums paid policy (as in effect as of the date of this Agreement) multiplied by XETA for three (3) (the “Maximum Amount”). If the amount of premium that is necessary to maintain or procure such insurance andcoverage exceeds the Maximum Amount, in ANB shall use commercially reasonable efforts to maintain the event most advantageous policies of director’s and officer’s liability insurance obtainable for a premium not exceeding the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountMaximum Amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the Company Charter, the Company Bylaws, the Operating Partnership Agreement or this Agreement or, if applicable, similar organizational documents or agreements of incorporation and bylaws any of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationSubsidiaries, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Company Merger Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, : (i) indemnify and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent person who is at the date hereof or during the period from the date hereof through the Company Merger Effective Time serving as a director or officer of XETA and each of its subsidiaries the Company or the Subsidiaries (collectively, the “Indemnified Parties”) against all costs to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, in connection with any Claim and expenses (including attorneys’ fees), any judgments, fines, losses, claims, damages, inquiries, liabilities penalties and settlement amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with any threatened or actual claimin respect of such judgments, actionfines, suit, proceeding penalties or investigation amounts paid in settlement) resulting therefrom; and (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out ii) promptly pay on behalf of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any each of the Transactions)Indemnified Parties, whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent authorized or permitted under Applicable Law (and shall pay by applicable law, as now or hereafter in effect, any expenses Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of any such action Claim, including payment on behalf of or proceeding advancement to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to whom expenses are advanced such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to Parent’s or the Surviving Corporation’s, as applicable, receipt of an undertaking by or on behalf of such Indemnified Party, if required by applicable Law, to repay such advances as required Expenses if it is ultimately determined under Applicable Lawapplicable Laws that such Indemnified Party is not entitled to be indemnified). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that neither Parent nor the Surviving Corporation shall not be liable for any settlement effected without its Parent’s or the Surviving Company’s written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioned); delayed) and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counselselected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single action unless there is, as determined by counsel Claim except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any extent that two or more Indemnified Parties, in which case of such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, shall have conflicting interests in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect outcome of such claim shall continue until the final disposition of such claimaction. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity indemnification and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The advancement obligations of Parent and the Surviving Corporation under pursuant to this Section 5.4 7.06(a) shall not be terminated extend to acts or modified omissions occurring at or before the Company Merger Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in such a manner connection with the approval of this Agreement and the consummation of the transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto). All rights to indemnification and advancement conferred hereunder shall continue as to adversely affect any directora person who has ceased to be a director or officer of the Company or the Subsidiaries after the date hereof and shall inure to the benefit of such person’s heirs, officer, employee, fiduciary executors and agent to whom personal and legal representatives. For purposes of this Section 5.4 applies 7.06(a): (x) the term “Claim” means any threatened, asserted, pending or completed Action, whether instituted by any party hereto, any Governmental Authority or any other party, that any Indemnified Party in good faith believes might lead to the institution of any such Action, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to such Indemnified Party’s duties or service as a director or officer of the Company or any of the Subsidiaries, at or prior to the Company Merger Effective Time at the request of the Company or any of the Subsidiaries; and (y) term “Expenses” means reasonable attorneys’ fees and all other reasonable costs, expenses and obligations (including, without the consent of each affected directorlimitation, officerexperts’ fees, employeetravel expenses, fiduciary court costs, retainers, transcript fees, duplicating, printing and agent binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (it being expressly agreed that the directorsincluding on appeal), officersor preparing to investigate, employeesdefend, fiduciaries and agents be a witness in or participate in, any Claim for which indemnification is authorized pursuant to whom this Section 5.4 applies 7.06(a), including any Action relating to a claim for indemnification or advancement brought by an Indemnified Party. Neither Parent nor the Surviving Corporation shall be third-party beneficiaries ofsettle, and entitled compromise or consent to the rights entry of third-party beneficiaries under, this Section 5.4). The rights any judgment in any Claim in respect of each which indemnification has been or could be sought by such Indemnified Party hereunder shall be in addition to any other rights unless (i) such settlement, compromise or judgment includes an unconditional release of such Indemnified Party may have under from all liability arising out of such Claim, (ii) such Indemnified Party otherwise consents thereto, or (iii) Parent or the charter or bylaws of XETA, under Oklahoma Law or otherwiseSurviving Corporation acknowledges that such Claim is subject to this Section 7.06.
Appears in 1 contract
Samples: Merger Agreement (Carramerica Realty Operating Partnership Lp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from who becomes prior to the Effective Time in any manner that would affect adversely Time, a director or officer of the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Company or any of its subsidiaries Subsidiaries (the “Indemnified Parties”) is, or is threatened to be, made a party based in respect whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director or officer of actions the Company or omissions occurring at any of its Subsidiaries or prior to (ii) this Agreement or any of the Effective Time (includingTransactions, without limitation, the matters contemplated by this Agreement).
(b) From and whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, Parent shall and shall cause the Surviving Corporation shallto, indemnify and hold harmless, to the fullest extent permitted under Applicable Lawby law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “such Indemnified Parties”) Party against all costs and expenses (including attorneys’ fees), judgments, fines, any losses, claims, damages, inquiriesliabilities, liabilities costs, expenses (including advances of reasonable attorney’s fees and settlement expenses prior to the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), whether civilthe Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with Parent; provided, criminalhowever, administrative or investigative, arising out of or pertaining that: (1) Parent shall have the right to assume the defense thereof and upon such assumption Parent shall not be liable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, Indemnified Party for any claim arising out legal expenses of this Agreement other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if Parent elects not to assume such defense or counsel for the Indemnified Parties reasonably advises that there are (under applicable standards of professional conduct) issues which raise conflicts of interest between Parent and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with Parent, and Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties; (2) Parent shall in all cases be obligated pursuant to this paragraph to pay for only one firm or counsel and any necessary local counsel for all Indemnified Parties except that if counsel for the Indemnified Parties reasonably advises that there are (under applicable standards of professional conduct) issues which raise conflicts of interest among one or more of the TransactionsIndemnified Parties, Parent will be obligated to pay for separate counsel such Indemnified Parties as to which there are conflicts; (3) Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld or delayed); and (4) Parent shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, whether occurring before or after and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party in the Effective Time, whether asserted or claimed prior to, at or after manner contemplated hereby is prohibited by applicable law. It is agreed and understood that Parent’s agreement to provide the Effective Time, for a period of six years after indemnification contemplated hereunder is no way intended to expand the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance scope of the final disposition of any such action indemnification obligations beyond that which a corporation would be permitted to provide to its own officers or proceeding to each directors under Delaware Law. Any Indemnified Party wishing to the fullest extent permitted claim Indemnification under Applicable Lawthis Section 7.06, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, provided that the failure to so notify Parent shall not affect the obligations of Parent under this Section 7.06 except to the extent such failure to notify prejudices Parent. Parent’s obligations under this Section 7.06 shall continue in full force and effect for a period of six (i6) years from the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterEffective Time; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of any claim (a “Claim”) asserted or made within such claim period shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4Claim.
(cb) From and Parent shall cause the Surviving Corporation to maintain in effect for a period of six (6) years after from the Effective Time, the Surviving Corporation shall maintain in effect Time the current directors’ and officers’ liability insurance policies policy maintained by XETA the Company (provided, provided that the Surviving Corporation Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that which are no not less advantageous to than such current policy) covering the persons serving as officers and directors, so long as such substitution does not result in gaps or lapses in coverage) directors of the Company on the date of this Agreement with respect to matters acts or omissions occurring prior to the Effective TimeTime which were committed by such officers and directors in their capacity as such; provided, however, that in no event shall the Surviving Corporation Parent be required to expend pursuant on an annual basis more than three hundred percent (300%) of the current amount expended by the Company (the “Insurance Amount”) to maintain or procure insurance coverage; and further provided that if Parent is unable to maintain or obtain the insurance called for by this Section 5.4(c7.06(b) more than Parent shall use all reasonable efforts to obtain as much comparable insurance as is available for the Insurance Amount; and provided, further, that notwithstanding the foregoing, the obligations under this Section 7.06(b) may be satisfied if the Surviving Corporation purchases a “tail” policy under the Company’s existing directors’ and officers’ insurance policy that (i) has an amount per year equal effective term of six (6) years from the Effective Time, (ii) covers those persons who are officers and directors of the Company on the date of this Agreement, for actions and omissions occurring on or prior to 300% of current annual premiums paid by XETA for such insurance and, the Effective Time and (iii) contains terms and conditions (including without limitation coverage amounts) that are at least as favorable in the event aggregate as the cost terms and conditions of such coverage shall exceed that amountthe Company’s directors’ and officers’ insurance policy in effect on the date hereof.
(c) Until six years from the Effective Time, unless otherwise required by applicable law, the certificate of incorporation and bylaws of the Surviving Corporation shall purchase contain provisions no less favorable with respect to the elimination of liability of directors and the indemnification of directors and officers (including as much coverage to advancement of expenses) than are set forth in the Restated Certificate of Incorporation and Bylaws of the Company, as possible for such amountin effect on the date hereof.
(d) In the event the Parent, Surviving Corporation or any of its their successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving company Surviving Company or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent or the Surviving Corporation shall Corporation, as the case may be, assume the obligations set forth in this Section 5.47.06.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the The provisions of this subsection (e) Section 7.06 are intended to be a primary obligation of Parent for the benefit of, and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent shall be enforceable by, each Indemnified Party and the Surviving Corporation under this Section 5.4 his or her heirs and representatives and shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent deemed exclusive of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such to which an Indemnified Party may have under the charter or bylaws of XETAis entitled, under Oklahoma Law whether pursuant to law, contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (McKesson Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company and its Subsidiaries (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company Charter Documents, in each case as of in effect on the date of this Agreement, which provisions shall not be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim made during such period, until the rights thereunder final disposition of individuals who at any time from and such proceeding or claim.
(b) For six years after the date of this Agreement Effective Time, to the fullest extent permitted under applicable Law, Parent and to the Surviving Corporation (the “Indemnifying Parties”) shall indemnify, defend and including the Effective Time were directorshold harmless each Indemnified Party against all losses, officersclaims, employeesdamages, fiduciaries liabilities, fees, expenses, judgments and fines arising in whole or agents of XETA or any of its subsidiaries in respect part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, including in connection with the matters transactions contemplated by this Agreement).
(b) From , and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance shall reimburse each Indemnified Party for any legal or other expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “reasonably incurred by such Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, Party in connection with investigating or defending any such losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid in connection with any threatened or actual claimfines as such expenses are incurred, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance Surviving Corporation’s receipt of the final disposition of any an undertaking by such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable Law; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, at its sole expense, (i) maintain in effect for a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect Time the current policies of directors’ and officers’ liability insurance policies maintained by XETA (provided, the Company immediately prior to the Effective Time ( provided that the Surviving Corporation may substitute therefor policies therefore policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of the Company and directorsits Subsidiaries when compared to the insurance maintained by the Company as of the date hereof), so long or (ii) obtain as such substitution does of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not result less advantageous to the directors and officers of the Company and its Subsidiaries, in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective TimeTime (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event shall will the Surviving Corporation be required to expend pursuant to this Section 5.4(can annual premium for such coverage in excess of two hundred percent (200%) more than an amount per year equal to 300% of current the last annual premiums premium paid by XETA the Company for such insurance andprior to the date of this Agreement, in which amount is set forth on Section 5.07(c) of the event Company Disclosure Letter (the cost of “Maximum Premium”). If such insurance coverage shall exceed that amountcannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation shall purchase as much coverage as possible will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for such amountan annual premium equal to the Maximum Premium.
(d) The obligations of Parent and the Surviving Corporation under this Section 5.07 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.07 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.07 applies shall be third party beneficiaries of this Section 5.07 , each of whom may enforce the provisions of this Section 5.07 ).
(e) In the event Parent, the Surviving Corporation 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In 5.07. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the event Company or its officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.45.07 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by the Surviving Corporation under persons referred to in this Section 5.4 shall not be terminated or modified 5.07 in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom connection with the enforcement of their rights provided in this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise5.07.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, HCC shall indemnify and hold harmless and advance expenses to each present and former directorperson who is now, or who has been at any time before the date of this Agreement, or who becomes before the Effective Time, an officer, employee, fiduciary director or employee of Tri-Valley (each an “Indemnified Party” and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and losses, claims, damages, costs, expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and or judgments or amounts that are paid in settlement amounts paid (which settlement shall require the prior written consent of HCC) of or in connection with any threatened or actual claim, action, suit, proceeding proceeding, investigation or other legal proceeding, whether civil, criminal, administrative or investigative or investigation (each, a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness, arising out of, in whole or in part, the fact that such person is or was a director, officer, employee, agent or fiduciary of Tri-Valley if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including the Merger and the other Contemplated Transactions), regardless of whether such Claim is asserted or claimed before or after the Effective Time, to the fullest extent permitted under Tri-Valley’s Charter Documents and applicable Law. HCC shall advance and pay all reasonable expenses (including reasonable attorneys’ fees) in advance of the final disposition of any such proceeding to each Indemnified Party to the extent permissible under applicable Law upon receipt of an undertaking to repay such advance payments if he or she shall be adjudicated or determined to be not entitled to indemnification under this Section 5.12.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.12(a), upon learning of any Claim, shall promptly notify HCC thereof; provided, however, that failure to so notify will not affect the obligations of HCC under Section 5.12(a) unless and to the extent that HCC is actually prejudiced as a consequence. In the event of any such Legal Action (whether arising before or after the Effective Time), whether civil(i) HCC shall have the right to assume the defense thereof and HCC shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, criminalexcept that if HCC elects not to assume such defense, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or if counsel for any of the Transactions), whether occurring before or after Indemnified Parties advises HCC that there are issues which raise conflicts of interest between the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (Indemnifying Party and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable LawParties that make joint representation inappropriate, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to themthe Indemnified Parties, the and HCC shall pay all reasonable fees and expenses of which shall be paid by the Surviving Corporation such counsel for Indemnified Parties promptly after as statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterreceived; provided, however, that HCC shall be obligated pursuant to this Section 5.12(b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, (ii) Indemnified Parties will cooperate in the Surviving Corporation defense of any such Claim, and (iii) HCC shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned)consent; and provided, further, that the Surviving Corporation HCC shall not be obligated pursuant have any obligation hereunder to this subsection any Indemnified Party when and if a court of competent jurisdiction shall determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated under Section 5.12(a) is prohibited by applicable Law.
(bc) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel Prior to the Indemnified PartiesEffective Time, under applicable standards HCC and Tri-Valley shall cause the persons serving as officers and directors of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made Tri-Valley immediately prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred covered by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA tail policy obtained from Tri-Valley’s carrier (provided, that the Surviving Corporation may substitute therefor policies “Tail Insurance Policy”) of at least substantially the same coverage and amounts containing terms and conditions that which are no generally not less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) than Tri-Valley’s current policy with respect to matters acts or omissions occurring prior to the Effective TimeTime that were committed by such officers and directors in their capacity as such for a period of six (6) years; provided, however, that in no event shall the Surviving Corporation cost of the Tail Insurance Policy be more than two hundred seventy-five percent (275%) of the current amount expended on an annual basis by Tri-Valley for its current policy; provided, further, that if the Tail Insurance Policy cannot be obtained as provided by this Section 5.12(c), HCC shall use its commercially reasonable efforts to obtain as much comparable insurance as is available for a premium amount up to such limit; provided, further, that officers and directors of Tri-Valley may be required to expend pursuant make application and provide customary representations and warranties to this Section 5.4(c) more than an amount per year equal to 300% insurance carrier for the purpose of current annual premiums paid by XETA for such insurance and, in obtaining the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountTail Insurance Policy.
(d) In This Section 5.12 shall survive the event the Surviving Corporation Effective Time and is intended to benefit each Indemnified Person and his or any her heirs and representatives (each of its successors or assigns (iwhom shall be entitled to enforce this Section 5.12 against HCC) 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 binding on all or 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 Corporation shall assume the obligations set forth in this Section 5.4HCC.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Mid Penn shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of Scottdale (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA Mid Penn, which consent shall not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions Scottdale if such Claim pertains to any matter of fact arising, existing or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by Scottdale under Applicable Law, indemnify, hold harmless the PBC and advance expenses to each present under Scottdale’s articles of incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and bylaws. Mid Penn shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by Scottdale under Applicable Lawthe PBC and under Scottdale’s articles of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as advance payments if such Indemnified Party shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this subsection upon learning of any Claim, shall notify Mid Penn (but the failure so to notify Mid Penn shall not relieve it from any liability that it may have under this subsection, except to the extent such failure materially prejudices Mid Penn) and shall deliver to Mid Penn the undertaking referred to in the previous sentence. Without limiting the foregoing, in any case in which approval by Mid Penn, one of its Subsidiaries or the board of directors thereof is required under Applicable Law). In to effect any indemnification, at the event election of the Indemnified Party, the determination of any such claimapproval shall be made by a majority of the independent directors then in office or, actionif no such directors are then in office, suit, proceeding or investigation, (i) by independent counsel mutually agreed upon between Mid Penn and the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claimParty. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided Nothing contained in this Section 5.47.10 or any other provision of this Agreement shall limit any right to indemnification which any current or former director, officer, employee or agent of Scottdale may have under applicable law or regulation or Scottdale’s articles of incorporation, bylaws, or the equivalent documents of any Subsidiary of Scottdale, as applicable, in each case as in effect on the date hereof, which Mid Penn agrees to honor in accordance with their terms.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Mid Penn 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 bank or entity of such consolidation or merger or (ii) transfers all or substantially all 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 Corporation Mid Penn shall assume the obligations set forth in this Section 5.47.10.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(fc) The obligations of Parent and the Surviving Corporation Mid Penn provided under this Section 5.4 shall not 7.10 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Mid Penn directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseMid Penn.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company or any of its Subsidiaries (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company Charter Documents, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.08 of the Company Disclosure Letter, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time. Any such rights contained in the Company Charter Documents shall survive the Merger in perpetuity and shall not be amended, repealed altered or otherwise modified for a period of six years from the Effective Time amended in any manner adverse to any Indemnified Party without the prior written consent of such Indemnified Party. Any such rights contained in the Contracts listed in Section 5.08 of the Company Disclosure Letter shall remain in full force and effect in accordance with their terms, and, in the event that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries proceeding is pending or agents of XETA asserted or any claim made during such period, until the final disposition of its subsidiaries in respect of actions such proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)claim.
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable applicable Law, indemnify, hold harmless Parent and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries the Surviving Corporation (collectively, the “Indemnified Indemnifying Parties”) shall indemnify, defend and hold harmless each Indemnified Party (in all of their capacities) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid fines incurred in connection with any threatened or actual claim, action, suit, proceeding action or investigation (whether arising before or after the Effective Time)proceeding, whether civil, criminal, administrative administrative, or investigativeinvestigative (each a “Claim”), arising out and shall provide advancement of or pertaining expenses to any action or omission in their capacity each Indemnified Party to the same extent such Indemnified Party has the right to advancement of expenses (i) as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of the date of this Agreement pursuant to the Company Charter Documents or (ii) pursuant to the Contracts listed in Section 5.08 of the Company Disclosure Letter and to the extent that such Indemnified Party does not have such a right to advancement of expenses, the Indemnifying Parties shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such Claim as such expenses are incurred, no later than seven days after receipt of the invoice of such legal or other expenses, subject to the Surviving Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law. The parties agree that the applicable Indemnified Party shall have the right to assume control of the defense of any Claim against such Indemnified Party, with counsel of the Indemnified Party’s choosing. The Indemnifying Parties shall cooperate with the applicable Indemnified Party in such defense and make available to them all witnesses, pertinent records, materials and information in the Indemnifying Parties’ possession or under its control relating thereto. The Indemnifying Parties shall have the right to participate in (but not control) the defense of such Claim, at the Indemnifying Parties’ expense; provided that none of the Indemnified Parties nor any of the Indemnifying Parties shall settle, compromise, discharge or consent to the entry of any judgment with respect to a Claim without the other party’s prior written consent, not to be unreasonably withheld, conditioned or delayed; provided further that the Indemnifying Parties may, without consent of the applicable Indemnified Party, settle, compromise, discharge or consent to the entry of any judgment with respect to a Claim which by its terms obligates the Indemnifying Parties to pay all monetary amounts in connection with such Claim and unconditionally releases the applicable Indemnified Party completely from all liability in connection with such Claim and that does not provide for any finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates.
(c) The Surviving Corporation shall, and Parent shall cause the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior Surviving Corporation to, at or after the Effective Time, (i) maintain in effect for a period of six (6) years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to themif available, the reasonable fees and expenses current policies of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of the Company and directorsits Subsidiaries when compared to the insurance maintained by the Company as of the date hereof), so long or (ii) obtain as such substitution does of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not result less advantageous to the directors and officers of the Company and its Subsidiaries, in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective Time; provided, however, that Time (including in no event shall connection with the Surviving Corporation be required to expend pursuant to transactions contemplated by this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountAgreement).
(d) The obligations of Parent and the Surviving Corporation under this Section 5.08 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.08 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.08 applies shall be third party beneficiaries of this Section 5.08, each of whom may enforce the provisions of this Section 5.08).
(e) In the event Parent, the Surviving Corporation 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.45.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Parent and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Sub agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company and its Subsidiaries (each an “Indemnified Party”) as provided in the certificate of incorporation and bylaws of XETA Company Charter Documents, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other Contracts in effect on the date hereof, shall not be amendedassumed by the Surviving Corporation in the Merger, repealed or otherwise modified for a period of six years from without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries proceeding is pending or agents of XETA asserted or any claim made during such period, until the final disposition of its subsidiaries in respect of actions such proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)claim.
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable applicable Law, indemnify, hold harmless Parent and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries the Surviving Corporation (collectively, the “Indemnified Indemnifying Parties”) against all costs shall indemnify, defend and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to hold harmless each Indemnified Party to the fullest same extent permitted under Applicable Law, upon receipt from provided in the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Charter Documents and all indemnification agreements with Indemnified Parties may retain counsel (including local counsel) satisfactory as in effect on the date of this Agreement, to them, the reasonable fees and expenses of which shall be paid by extent copies have been provided or made available to Parent prior to the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterdate hereof; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) maintain in effect for a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect Time the current policies of directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA Company and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.Subsidiaries when
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Without limiting any additional rights that any employee may have under any employment agreement or Company Plan as in effect on the date hereof and bylaws of which has previously been made available to Parent, from the Effective Time, Parent shall cause the Surviving Corporation to, indemnify and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA present (as of the date Effective Time) and former officer and director of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Company or any of its subsidiaries in respect (including any employee who serves as a fiduciary of actions or omissions occurring at or prior to the Effective Time a Company Plan) (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) ), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses (expenses, including attorneys’ fees)fees and disbursements, judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminal, administrative or investigative, based on or arising out of of, or pertaining to to, in whole or in part, (x) the fact that an Indemnified Party is or was an officer or director of the Company or any action of its subsidiaries or omission in their capacity is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or non-profit entity, (including, without limitation, any claim arising out of y) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby) or (z) actions or omissions by an Indemnified Party taken at the request of the Company or any of the Transactions)its subsidiaries, whether occurring before or after the Effective Timein each case, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)applicable law. In the event of any such claim, action, suit, proceeding or investigation, (iA) the each Indemnified Parties may retain counsel Party will be entitled to advancement of expenses (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid legal counsel) incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation within ten (10) Business Days of receipt by the Surviving Corporation promptly after statements therefor from the Indemnified Party of a request therefor; provided that any person to whom expenses are received advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification pursuant to this Section 6.7, (B) neither Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes a release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents and (iiC) the Surviving Corporation shall use reasonable best efforts cooperate in the vigorous defense of any such matter.
(b) The articles of incorporation and bylaws of the Surviving Corporation shall, to the extent permitted by law, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company’s Articles of Incorporation and Bylaws, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals.
(c) For a period of six (6) years after the Effective Time, with respect to claims asserted arising from or related to facts, events, acts and/or omissions which occurred or were committed or allegedly occurred or were committed at or before the Effective Time, Parent shall cause to be maintained, at Parent’s option: (i) the current policies of directors’ and officers’ liability insurance maintained by the Company; (ii) a directors’ and officers’ liability “tail” or “runoff” insurance program, with an aggregate coverage limit over the term of such program in an amount not to exceed the unimpaired annual aggregate coverage limit under the Company’s existing directors’ and officers’ liability policy, and in all other respects substantially comparable to such existing coverage or (iii) such other policies of directors’ and officers’ liability insurance with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous as those set forth in the current policies of directors’ and officers’ liability insurance maintained by the Company; provided, however, that Parent shall not be obligated to make a premium payment for such insurance to the extent such premium exceeds 250% of the annual premiums paid as of the date hereof by the Company for such insurance, which annual premiums paid are set forth on Section 6.7(c) of the Company Disclosure Schedule (such 250% amount, the “Base Premium”); provided further, if such insurance coverage cannot be obtained at all, or can only be obtained at a premium in excess of the Base Premium, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance reasonably available for an annual premium equal to the Base Premium.
(d) If Parent does not elect to purchase a “tail” policy, the Company may, at its option, prior to the Effective Time and in lieu of the foregoing insurance coverage, purchase a six (6) year “tail” policy providing at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured as the current policies of directors’ and officers’ liability insurance maintained by the Company with respect to claims arising from facts or events that occurred at or before the Effective Time; provided, however, that the Surviving Corporation Company shall not be liable not, without Parent’s consent, make a premium payment for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel such insurance to the extent such premium exceeds the Base Premium.
(e) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation is made against any Indemnified Parties, under applicable standards of professional conduct, a conflict Party on or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the sixth anniversary of the Effective Time or within such six-year periodTime, all rights to indemnification in respect the provisions and benefits of such claim this Section 6.7 shall continue in full force and effect until the final disposition of such claim, action, suit proceeding or investigation.
(f) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The Surviving Corporation Parent shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.46.7; provided that such Indemnified Parties make an undertaking to repay such expenses if it is determined that they were not entitled to indemnification or expense reimbursement under this Section 6.7. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(dg) In the event that Parent, the Surviving Corporation or any of its their 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 substantially all 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 Parent or the Surviving Corporation Corporation, as the case may be, shall assume the obligations set forth in this Section 5.46.7.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Certificate of incorporation Incorporation and bylaws By-Laws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain the provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate Certificate of incorporation Incorporation and bylaws By-Laws of XETA as of Viacom on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and prior to and including the Effective Time were directors, officers, employees, fiduciaries directors or agents officers of XETA or any of its subsidiaries Blockbuster in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters transactions contemplated by this Agreement), unless such modification is required by law.
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, shall indemnify, defend and hold harmless and advance expenses to each the present and former director, officer, employee, fiduciary officers and agent directors of XETA and each of its subsidiaries Blockbuster (collectively, the “"Indemnified Parties”") against all costs and expenses (including attorneys’ fees)losses, judgments, fines, lossesexpenses, claims, damages, inquiriesliabilities or amounts that are paid in settlement of, liabilities and settlement amounts paid with the approval of the Surviving Corporation (which approval shall not unreasonably be withheld), or otherwise in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Timea "Claim"), whether civil, criminal, administrative based in whole or investigative, in part on the fact that such person is or was a director or officer of Blockbuster and arising out of actions or pertaining omissions occurring at or prior to any action or omission in their capacity as a director, officer, employee, fiduciary or agent the Effective Time (including, without limitation, any claim arising out of the transactions contemplated by this Agreement or any of the TransactionsAgreement), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest full extent permitted under Applicable Delaware Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of an the undertaking to repay such advances as required under Applicable contemplated by Section 145(e) of Delaware Law). In .
(c) Without limiting the foregoing, in the event of any such claim, action, suit, proceeding Claim is brought against any Indemnified Party (whether arising before or investigation, after the Effective Time) after the Effective Time (i) the Indemnified Parties may retain Blockbuster's regularly engaged independent legal counsel (including local counsel) or other independent legal counsel satisfactory to them, the reasonable fees and expenses of which provided that such other counsel shall be paid by reasonably acceptable to the Surviving Corporation promptly after statements therefor are received and Corporation, (ii) the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received and (iii) the Surviving Corporation will use its reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, provided that the Surviving Corporation shall not be liable for any settlement of any Claim effected without its written consent (consent, which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that . Any Indemnified Party wishing to claim indemnification under this Section 6.02 upon learning of any such Claim shall notify the Surviving Corporation (although the failure so to notify the Surviving Corporation shall not be obligated pursuant relieve the Surviving Corporation from any liability which the Surviving Corporation may have under this Section 6.02, except to this subsection (bthe extent such failure materially prejudices the Surviving Corporation's position with respect to such claim), and shall deliver to the Surviving Corporation the undertaking contemplated by Section 145(e) to pay the fees and expenses of Delaware Law. The Indemnified Parties as a group may retain no more than one counsel law firm (plus appropriate in addition to local counsel) for all Indemnified Parties in any single action to represent them with respect to each such matter unless there is, under applicable standards of professional conduct (as determined by counsel to the Indemnified Parties), under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case event such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4Parties.
(cd) From and for For a period of six three years after the Effective Time, the Surviving Corporation shall maintain cause to be maintained in effect the current policies of directors’ ' and officers’ ' liability insurance policies maintained by XETA Blockbuster (provided, provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that which are no less advantageous to such former officers and directors, so long as such substitution does not result in gaps or lapses in coveragedirectors of Blockbuster) with respect to matters occurring prior to claims arising from facts or events which occurred before the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.Section
Appears in 1 contract
Samples: Merger Agreement (Viacom Inc)
Directors’ and Officers’ Indemnification and Insurance. 7.9.1. NYB shall maintain in effect for six (a6) The certificate years following the Effective Time, the current directors' and officers' liability insurance policies maintained by Synergy (provided, that NYB may substitute therefor policies of incorporation at least the same coverage containing terms and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no conditions which are not materially less favorable to the persons covered thereby favorable) with respect to exculpationmatters occurring prior to or at the Effective Time; provided, indemnification and advancement of expenses than are set forth however, that in no event shall NYB be required to expend in the certificate of incorporation and bylaws of XETA as aggregate pursuant to this Section 7.9.1 more than 150% of the date annual cost currently expended by Synergy with respect to such insurance (the "Maximum Amount"); provided, further, that if the amount of this Agreementthe annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, which provisions NYB shall not be amended, repealed or otherwise modified maintain the most advantageous policies of directors' and officers' insurance obtainable for a period of premium equal to the Maximum Amount. In connection with the foregoing, Synergy agrees in order for NYB to fulfill its agreement to provide directors and officers liability insurance policies for six years from to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the Effective Time in reporting of any manner that would affect adversely the rights thereunder of individuals who at any time prior claims.
7.9.2. In addition to 7.9.1, from and after the Effective Time, NYB shall indemnify and hold harmless each person who is now, or who has been at any time before the date of this Agreement and to and including hereof, or who becomes before the Effective Time were directorsTime, officersan officer or director of Synergy (the "Indemnified Parties") against all losses, employeesclaims, fiduciaries damages, costs, expenses (including attorney's fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA NYB, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a "Claim"), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director or officer of actions Synergy or omissions a Synergy Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, Time (the Surviving Corporation shall"Indemnified Liabilities"), to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent Synergy's Certificate of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened Incorporation or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case Bylaws to the fullest extent permitted under Applicable Law (and by applicable law. NYB shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest full extent permitted under Applicable Law, by applicable state or Federal law upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In advance payments if the 44
(1) after the Effective Time NYB shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such claimmatter) and upon such assumption NYB shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, actionexcept that if NYB elects not to assume such defense, suitor counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether or not any have yet actually arisen) issues which raise conflicts of interest between NYB and the Indemnified Parties, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) reasonably satisfactory to them, and NYB shall pay the reasonable fees and expenses of which such counsel for the Indemnified Parties, (2) NYB shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be paid by the Surviving Corporation promptly after as statements therefor are received and except to the extent the interests of such Indemnified Parties may conflict, (ii3) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation NYB shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); , and provided, further, that the Surviving Corporation (4) no indemnification shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel available to the Indemnified Parties, under applicable standards extent the person seeking indemnification has not acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of professional conduct, a conflict Synergy or a Synergy Subsidiary or its successor, and with respect to any criminal proceeding, had no reasonable likelihood cause to believe his conduct was unlawful. The determination shall be made by a majority vote of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense quorum consisting of the Surviving Corporation; and provided, further, that, Directors of NYB who are not involved in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claimproceeding.
7.9.3. The Surviving Corporation NYB shall pay all reasonable expenses, expenses (including attorneys’ ' fees, ) that may be reasonably incurred by any an Indemnified Party in enforcing the indemnity and other obligations provided in of NYB under this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time7.9; provided, however, that in no event NYB shall the Surviving Corporation only be required to expend pursuant pay such expenses contemplated if it is first determined by final judicial decision that such Indemnified Party is entitled to indemnity under this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount7.9.
(d) 7.9.4. In the event the Surviving Corporation that either NYB or any of its successors or assigns (i) consolidates with or merges into any other person and shall to the extent not be the continuing or surviving company or entity assumed by operation of such consolidation or merger or (ii) law, transfers all or substantially all 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 Corporation NYB shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) 7.9.5. The obligations of Parent and the Surviving Corporation NYB provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against NYB directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseNYB.
Appears in 1 contract
Samples: Merger Agreement (Synergy Financial Group Inc /Nj/)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from and after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Northfield Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer or director of Flatbush Federal Bancorp or a Flatbush Subsidiary (the “Indemnified Parties”) against all losses, employeesclaims, fiduciaries damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement of XETA or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions Flatbush Federal Bancorp or omissions a Flatbush Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Mid-Tier Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by Flatbush Federal Bancorp under Applicable Law, indemnify, hold harmless the applicable Regulations and advance expenses to each present under Flatbush Federal Bancorp’s Charter and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. Northfield Bancorp shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by Flatbush Federal Bancorp under Applicable Lawapplicable Regulations and under Flatbush Federal Bancorp’s Charter and Bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 6.08 upon learning of any Claim, shall notify Northfield Bancorp (but the failure to so notify Northfield Bancorp shall not relieve Northfield Bancorp from any liability which it may have under this Section 6.08, except to the extent such failure materially prejudices Northfield Bancorp) and shall deliver to Northfield Bancorp the undertaking referred to in the previous sentence. In the event of any such claim, action, suit, proceeding or investigationinvestigation (whether arising before or after the Effective Time), (i) Northfield Bancorp or an insurance carrier pursuant to Section 6.08(c) below shall have the right to assume the defense thereof and Northfield Bancorp shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Northfield Bancorp elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Northfield Bancorp and the Indemnified Parties, the Indemnified Parties may retain counsel (including local counsel) which is reasonably satisfactory to themNorthfield Bancorp, unless the Indemnified Party is provided with counsel by an insurance carrier pursuant to Section 6.08(c) below, and Northfield Bancorp shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which shall be paid by the Surviving Corporation promptly after statements therefor are received and may not exceed one firm in any jurisdiction), (ii) the Surviving Corporation shall use reasonable best efforts Indemnified Parties will cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation (iii) Northfield Bancorp shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed ) and (iv) Northfield Bancorp shall have no obligation hereunder to the extent that a Federal or conditioned); state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable laws and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection regulations.
(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation If either Northfield Bancorp 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Northfield Bancorp shall assume the obligations set forth in this Section 5.46.08.
(ec) In the event that the Surviving Corporation should failNorthfield Bancorp shall use its best efforts to maintain, at any time from and after or shall cause Northfield Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Flatbush Federal Bancorp (provided, that Northfield Bancorp may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall Northfield Bancorp be required to expend pursuant to this Section 6.08(c) an amount that in the aggregate is more than 200% of the foregoing obligations set forth in this Section 5.4annual premiums (the “Maximum Amount”) currently paid by Flatbush Federal Bancorp for such insurance and, for any reason, Parent shall be responsible therefor and hereby agrees if Northfield Bancorp is unable to perform maintain such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except policy as would be prohibited by Applicable Law), it being the intention a result of this subsection proviso, Northfield Bancorp shall obtain as much comparable insurance as is available for such Maximum Amount; provided further, that Northfield Bancorp may (ei) that request Flatbush Federal Bancorp obtain an extended reporting period endorsement under Flatbush Federal Bancorp’s existing directors’ and officers’ liability insurance policy or (ii) substitute therefor “tail” policies the officersmaterial terms of which, directorsincluding coverage and amount, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent are no less favorable in any material respect to such person’s than Flatbush Federal Bancorp’s existing insurance policies as of the obligations date hereof. In connection with the foregoing, Flatbush Federal Bancorp agrees in order for Northfield Bancorp to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of the Surviving Corporationany prior claims.
(fd) The obligations of Parent and the Surviving Corporation Northfield Bancorp provided under this Section 5.4 shall not 6.08 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Northfield Bancorp directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseNorthfield Bancorp.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation ESSA Bancorp shall indemnify, defend and bylaws of the Surviving Corporation and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of this AgreementEN Bancorp or an EN Bancorp Subsidiary (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of ESSA Bancorp, which provisions consent shall not be amendedunreasonably withheld, repealed delayed or otherwise modified for conditioned) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a period “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of six years from the Effective Time in fact that such person is or was a director, officer or employee of EN Bancorp or an EN Bancorp Subsidiary if such Claim pertains to any manner that would affect adversely the rights thereunder matter of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorsfact arising, officers, employees, fiduciaries existing or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by EN Bancorp under Applicable Law, indemnify, hold harmless Pennsylvania law and advance expenses to each present under EN Bancorp’s Articles of Incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. ESSA Bancorp shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by EN Bancorp under Applicable LawPennsylvania law and under EN Bancorp’s Articles of Incorporation and Bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which advance payments if he shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall adjudicated or determined to be not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights entitled to indemnification in respect of such claim shall continue until the final disposition of such claimmanner set forth below. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Any Indemnified Party in enforcing the indemnity and other obligations provided in wishing to claim indemnification under this Section 5.46.09 upon learning of any Claim, shall notify ESSA Bancorp (but the failure so to notify ESSA Bancorp shall not relieve it from any liability which it may have under this Section 6.09, except to the extent such failure materially prejudices ESSA Bancorp) and shall deliver to ESSA Bancorp the undertaking referred to in the previous sentence.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either ESSA Bancorp 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation ESSA Bancorp shall assume the obligations set forth in this Section 5.46.09.
(c) ESSA Bancorp shall maintain, or shall cause ESSA Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of EN Bancorp and Eagle Bank (provided, that ESSA Bancorp may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable to the officers and directors of EN Bancorp and the EN Bancorp Subsidiaries) with respect to matters occurring at or prior to the Effective Time; provided, however, that in no event shall ESSA Bancorp be required to expend pursuant to this Section 6.09(c) an aggregate amount in excess of 200% of the annual cost currently expended by EN Bancorp with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, ESSA Bancorp shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, EN Bancorp agrees in order for ESSA Bancorp to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims. For the avoidance of doubt, nothing contained in the Section 6.09(c) limits ESSA Bancorp’s obligations under Sections 6.09(a) or 6.09(b) or ESSA Bancorp’s or the EN Bancorp’s obligations under Pennsylvania law.
(d) The obligations of ESSA Bancorp provided under this Section 6.09 are intended to be enforceable against ESSA Bancorp directly by the Indemnified Parties and shall be binding on all respective successors and permitted assigns of ESSA Bancorp.
(e) In To the event that the Surviving Corporation should failextent a person is entitled to indemnification from ESSA Bancorp pursuant to Section 6.09(a) with respect to a claim, at any time from and after the Effective Timecause of action or other liability, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby ESSA Bancorp agrees to perform release such obligations unconditionally without regard person with respect to any defense such claim, cause of action or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationliability.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from After the Effective Time in any manner that would affect adversely through the rights thereunder sixth anniversary of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, shall indemnify and hold harmless and advance expenses to each present and or former director, officer, employeedirector or employee of the Company and its Subsidiaries (when acting in such capacity), fiduciary and agent determined as of XETA and each of its subsidiaries the Effective Time (collectively, the “"Indemnified Parties”) "), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities the reasonable fees and settlement amounts paid expenses of only one law firm for the Indemnified Parties as a group) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action (A) the fact that the Indemnified Party is or omission in their capacity as a director, was an officer, employee, fiduciary director or agent (including, without limitation, any claim arising out employee of this Agreement the Company or any of the Transactions), whether its Subsidiaries or (B) matters existing or occurring before at or after prior to the Effective TimeTime (including this Agreement and the transactions and actions contemplated hereby; it being understood that a reduction under the Retention Plan in the amount of the Remaining Pool as a consequence of an Indemnification Amount (as such terms are defined in the Retention Plan) shall not be subject to indemnification hereunder), whether asserted or claimed prior toto (and, in the case of claims, actions, proceedings or known investigations, disclosed to the Parent in writing before the Effective Time), at or after the Effective Time, for a period to the fullest extent that the Company would have been permitted under Applicable Law and its certificate of six years after incorporation and by-laws in effect with respect to the Effective Time, in each case date hereof to indemnify such Indemnified Party. Each Indemnified Party will be entitled to the fullest extent permitted under by Applicable Law (and shall pay any the Company's certificate of incorporation and by-laws on the date hereof to advancement of expenses incurred in advance of the final disposition defense of any such action claim, action, proceeding or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt investigation from the Indemnified Party Surviving Corporation; provided that any Person to whom expenses are advanced of provides an undertaking undertaking, to the extent required by the DGCL, to repay such advances as required if it is ultimately determined that such Person is not entitled to indemnification.
(b) Any Indemnified Party wishing to claim indemnification under Applicable Law)paragraph (a) of this Section 5.9, upon learning of any such claim, action, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party to the extent such failure does not prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigationinvestigation (whether arising before or after the Effective Time), (i) the Surviving Corporation shall have the right to assume the defense thereof and neither the Parent nor the Surviving Corporation shall be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense, the Indemnified Parties may retain counsel (including local counsel) satisfactory to themthe Surviving Corporation, and the Surviving Corporation shall pay all reasonable fees and expenses of which shall be paid by such counsel for the Surviving Corporation Indemnified Parties promptly after as statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterreceived; provided, however, that the Surviving Corporation shall not be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties, (ii) the Indemnified Parties will cooperate in the defense of any such matter, and (iii) neither the Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent the prior approval of the Surviving Corporation (which consent approval shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that neither the Parent nor the Surviving Corporation shall not be obligated pursuant have any obligation hereunder to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4manner contemplated hereby is prohibited by Applicable Law.
(c) From and The Surviving Corporation shall cause to be maintained in effect for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current policies of directors’ ' and officers’ ' liability insurance policies and fiduciary liability insurance maintained by XETA the Company (provided, provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are which are, in the aggregate, no less advantageous to such officers the insured and directors, so long as such substitution does not result in gaps or lapses in coveragewhich policies may include a "tail policy") with respect to matters occurring prior to claims arising from facts or events that occurred at or before the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than in any one year an amount per year equal to 300in excess of 200% of current the annual premiums currently paid by XETA the Company for such insurance and(the most recent annual renewal of which, in the event aggregate, cost $318,338, as set forth in Schedule 4.1(q) to the cost Company Disclosure Schedule); and, provided, further, that if the annual premiums of such insurance coverage shall exceed that such amount, the Surviving Corporation shall purchase be obligated to obtain a policy in its reasonable judgment with as much coverage as possible can be obtained for a cost not exceeding such amount.
(d) In the event that the Surviving Corporation or any of its successors or assigns (iA) 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 (iiB) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and or assigns of the Surviving Corporation shall assume succeed to the obligations set forth in this Section 5.45.9.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Massachusetts Mutual Life Insurance Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, honor and fulfill in all respects the obligations of incorporation the Company relating to indemnification of directors and bylaws officers and advancement of expenses under the Company Governing Documents in effect as of the date hereof (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), with respect to any matter arising out of, relating to, or in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time, including in connection with the approval of this Agreement and the Merger. Subject to the provisions of Section 145(e) of the DGCL, in the event any Action is brought against any Indemnified Party for any matter alleged to occur prior to the Effective Time, (i) any counsel retained by such Indemnified Party shall be reasonably satisfactory to Parent; (ii) Parent shall pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefor are received; and (iii) Parent shall cooperate in the defense of any such matter; provided, that Parent shall not be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 7.05, upon learning of any such Action, shall promptly notify Parent (but the failure so to notify Parent shall not relieve either from any liability which it may have under this Section 7.05 except to the extent such failure prejudices Parent). Parent shall be liable for the fees and expenses hereunder with respect to only one law firm to represent the Indemnified Parties as a group with respect to each such matter unless there is, under applicable standards of professional conduct as advised by counsel, a conflict between the positions of any two or more Indemnified Parties that would preclude or render inadvisable joint or multiple representations of such parties, in which case Parent shall be liable for the fees and expenses of each applicable law firm representing an Indemnified Party in the relevant matter. Further, from and after the Effective Time, Parent shall not, and shall cause the Company or the Surviving Corporation, as applicable, not to, settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action by or before any Governmental Authority, with respect to any matter arising out of, relating to, or in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time, including in connection with the execution or adoption of this Agreement (in which indemnification could be sought by such Indemnified Party under Delaware law, the indemnification provisions in the Company Governing Documents or his or her indemnification agreement), brought against any Indemnified Party, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing and Parent and the Surviving Corporation shall cooperate in the defense of any such matter.
(b) Notwithstanding Section 2.05, Parent and the Surviving Corporation shall not amend, repeal or otherwise modify the Certificate of Incorporation or Bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder thereunder, or under the Company Governing Documents in effect as of individuals who at any time from and after the date hereof, of this Agreement any Indemnified Party relating to indemnification, exculpation and to and including the Effective Time were directorsadvancement, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior except to the Effective Time (including, without limitation, the matters contemplated extent required by this Agreement)Law.
(bc) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, maintain in effect for a period commencing on the date of the Effective Time and ending six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (all policies of directors’ and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) officers’ liability insurance covering the Indemnified Parties may retain counsel (including local counsel) satisfactory in amounts that are at least equal to them, and with all terms and conditions at least as favorable as the reasonable fees and expenses of which shall be paid existing policies maintained by the Surviving Corporation promptly after statements therefor are received Company, and (ii) providing coverage for any acts or omissions that occurred or may be alleged to have occurred prior to the Surviving Corporation shall use reasonable best efforts Effective Time, including any acts or omissions in connection with the vigorous defense approval of any such matterthis Agreement and consummation of the Merger; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in satisfaction of the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Timeforegoing, the Surviving Corporation shall maintain in effect may, or if requested by Parent, the current Company shall, purchase six-year “tail” coverage under the existing directors’ and officers’ liability insurance policies maintained by XETA (provided, that insurance carriers with financial strength ratings equal to or greater than the Surviving Corporation may substitute therefor policies financial strength ratings of at least the same coverage Company’s existing directors’ and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Timeofficers’ liability insurance carriers; provided, howeverfurther, that in no event shall the Surviving Corporation be required to expend pay aggregate premiums for insurance pursuant to this Section 5.4(c7.05(c) more than an amount per year equal to 300in excess of 200% of current the amount of the aggregate annual premiums paid by XETA the Company for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountinsurance.
(d) In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person entity and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers all or 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 Corporation or, at Parent’s option, Parent shall assume the obligations set forth in this Section 5.47.05.
(e) In This Section 7.05 is intended for the event that irrevocable benefit of, and to grant third party rights to, the Surviving Corporation should fail, at any time from Indemnified Parties and after the Effective Time, to comply with any shall be binding on all successors and assigns of the foregoing obligations set forth in this Section 5.4Company, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Corporation. This Section 5.4 7.05 shall not be terminated or modified amended in such a manner as that is adverse to adversely affect any director, officer, employee, fiduciary the Indemnified Parties (including their successors and agent to whom this Section 5.4 applies heirs) or terminated without the consent of each the Indemnified Parties (including their successors and heirs) affected director, officer, employee, fiduciary and agent (it being expressly agreed that thereby. Each of the directors, officers, employees, fiduciaries and agents Indemnified Parties shall be entitled to whom enforce the covenants contained in this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise7.05.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.9.1. For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Bridge Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of CNB (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA Bridge Bancorp, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions CNB if such Claim pertains to any matter of fact arising, existing or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by CNB under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any regulations of the Transactions)OCC, whether occurring before or after including as applicable the Effective TimeDCGL, whether asserted or claimed prior to, at or after the Effective Time, for a period and under CNB’s Articles of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (Association and Bylaws. Bridge Bancorp shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by CNB under Applicable Lawthe National Bank Act and the regulations of the OCC, including as applicable the DCGL, and under CNB’s Articles of Association and Bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if such officer, director or employee shall be adjudicated or determined to be not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.1 upon learning of any Claim, shall notify Bridge Bancorp (but the failure so to notify Bridge Bancorp shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure materially prejudices Bridge Bancorp) and shall deliver to Bridge Bancorp the undertaking referred to in the previous sentence.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either Bridge Bancorp 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Bridge Bancorp shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. Either Bridge Bank or Bridge Bancorp shall maintain, at any time from and after in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of CNB (provided, that Bridge Bancorp or Bridge Bank may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall Bridge Bancorp or Bridge Bank be required to expend in the aggregate pursuant to this Section 7.9.3 more than 300% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by CNB with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Bridge Bancorp or Bridge Bank shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, CNB agrees in order for Bridge Bancorp or Bridge Bank to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.9.4. The obligations of Parent Bridge Bank and the Surviving Corporation Bridge Bancorp provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Bridge Bank and agent to whom this Section 5.4 applies without Bridge Bancorp directly by the consent of each affected director, officer, employee, fiduciary Indemnified Parties and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseBridge Bancorp and Bridge Bank.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.9.1. For a period of six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, First Sentry Bancshares shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer, employeesdirector or employee of Guaranty Financial or a Guaranty Financial Subsidiary (the “Indemnified Parties”) against all losses, fiduciaries claims, damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of XETA First Sentry Bancshares, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions Guaranty Financial or omissions a Guaranty Financial Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable state or Federal law, indemnifyFirst Sentry Bancshares’s Certificate of Incorporation and Bylaws, hold harmless and advance expenses to each present under Guaranty Financial’s Certificate of Incorporation or Charter and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and Bylaws. First Sentry Bancshares shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest full extent permitted under Applicable Law, by applicable state or Federal law upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9.1 upon learning of any Claim, shall notify First Sentry Bancshares (but the failure so to notify First Sentry Bancshares shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure materially prejudices First Sentry Bancshares) and shall deliver to First Sentry Bancshares the undertaking referred to in the previous sentence.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either First Sentry Bancshares 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation First Sentry Bancshares shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. First Sentry Bancshares shall maintain, at any time from and after or shall cause First Sentry Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Guaranty Financial (provided, that First Sentry Bancshares may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall First Sentry Bancshares be required to expend in the aggregate pursuant to this Section 7.9.3 more than 125% of the foregoing obligations set forth in this Section 5.4annual cost currently expended by Guaranty Financial with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, First Sentry Bancshares shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, Guaranty Financial agrees in order for First Sentry Bancshares to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.9.4. The obligations of Parent and the Surviving Corporation First Sentry Bancshares provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against First Sentry Bancshares directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseFirst Sentry Bancshares.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Pyramid and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable Merger Subsidiary agree that all rights to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses than are set forth and exculpation by the Company and Pyramid now existing in favor of each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Merger Effective Time an officer or director of (i) the Company and its subsidiaries (each, a "Company Indemnified Party"), as provided in the Company’s certificate of incorporation and incorporation, bylaws of XETA or the DGCL, in each case as of in effect on the date of this Agreement, which provisions or pursuant to any other contracts in effect on the date hereof and disclosed in Section 6.10 of the Company Disclosure Schedule, shall not be amendedassumed by the Surviving Corporation in the Merger at the Merger Effective Time, repealed (ii) Pyramid and its subsidiaries (each, a "Pyramid Indemnified Party" and collectively with the Company Indemnified Party, the “Indemnified Parties”), as provided in Pyramid’s Restated Articles of Incorporation, Amended and Restated Bylaws, or otherwise modified for a period of six years from the Effective Time CCC, in any manner that would affect adversely the rights thereunder of individuals who at any time from and after each case as in effect on the date of this Agreement Agreement, or pursuant to any other contracts in effect on the date hereof and to disclosed in Section 5.07 of the Pyramid Disclosure Schedule, shall be assumed by Pyramid without further action, and including shall survive the Effective Time were directorsMerger and shall remain in full force and effect in accordance with their terms, officersand, employees, fiduciaries in the event that any proceeding is pending or agents of XETA asserted or any claim made during such period, until the final disposition of its subsidiaries in respect of actions such proceeding or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)claim.
(b) From and For six years after the Merger Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable law, Pyramid and the Surviving Corporation shall indemnify, defend and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA Company Indemnified Party and each of its subsidiaries (collectivelyPyramid Indemnified Party, the “Indemnified Parties”) as applicable, against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriesliabilities, liabilities fees, expenses, judgments and settlement amounts paid fines arising in connection with any threatened whole or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising in part out of actions or pertaining to any action or omission omissions in their capacity as a director, officer, employee, fiduciary such occurring at or agent prior to the Merger Effective Time (including, without limitation, any claim arising out of including in connection with the transactions contemplated by this Agreement or any of the TransactionsAgreement), whether occurring before and shall reimburse each Company Indemnified Party and each Pyramid Indemnified Party for any legal or after the Effective Timeother expenses reasonably incurred by such Company Indemnified Party or Pyramid Indemnified Party in connection with investigating or defending any such losses, whether asserted or claimed prior toclaims, at or after the Effective Timedamages, for a period of six years after the Effective Timeliabilities, in each case fees, expenses, judgments and fines as such expenses are incurred, subject to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action Surviving Corporation’s or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon Pyramid’s receipt from the Indemnified Party to whom expenses are advanced of an undertaking by such Company Indemnified Party or Pyramid Indemnified Party, as the case may be, to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of which shall a court of competent jurisdiction that such Company Indemnified Party or Pyramid Indemnified Party is not entitled to be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterindemnified under applicable law; provided, however, that the Surviving Corporation shall and Pyramid will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent consent, in the case of a Company Indemnified Party, or Pyramid’s prior written consent, in the case of a Pyramid Indemnified Party (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From Pyramid shall, as to Pyramid, and the Surviving Corporation shall, as to the Surviving Corporation, (i) maintain in effect for a period of six (6) years after the Merger Effective Time, the Surviving Corporation shall maintain in effect if available, the current policies of directors’ and officers’ liability insurance policies maintained by XETA Pyramid and the Company, as applicable, immediately prior to the Merger Effective Time (provided, provided that Pyramid and the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions that are no not less advantageous to such the directors and officers of Pyramid and directorsthe Company and its subsidiaries when compared to the insurance maintained by Pyramid and the Company, so long as such substitution does applicable, as of the date hereof), or (ii) obtain as of the Merger Effective Time “tail” insurance policies with a claims period of six (6) years from the Merger Effective Time with at least the same coverage and amounts and containing terms and conditions that are not result less advantageous to the directors and officers of Pyramid and the Company and its subsidiaries, as applicable, in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Merger Effective TimeTime (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event shall will Pyramid or the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year a premium for such coverage in excess of $100,000.00 (the “Maximum Premium”). If such insurance coverage cannot be obtained at a premium equal to 300% of current annual premiums paid by XETA for such insurance andor less than the Maximum Premium, in the event the cost of such coverage shall exceed that amount, Pyramid and the Surviving Corporation shall purchase as much coverage as possible will obtain, and Pyramid will cause the Surviving Corporation to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for such amounta premium equal to the Maximum Premium.
(d) The obligations of Pyramid and the Surviving Corporation under this Section 7.16 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Company Indemnified Party or Pyramid Indemnified Party to whom this Section 7.16 applies without the consent of such affected Company Indemnified Party or Pyramid Indemnified Party, as applicable (it being expressly agreed that the Indemnified Parties to whom this Section 7.16 applies shall be third party beneficiaries of this Section 7.16, each of whom may enforce the provisions of this Section 7.16).
(e) In the event Pyramid, the Surviving 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 corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each either such case, proper provision shall be made so that the successors and assigns of Pyramid or the Surviving Corporation Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(e) In 7.16. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Company Indemnified Party and any Pyramid Indemnified Party is entitled, whether pursuant to law, contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Pyramid, the event Company or their respective officers, directors and employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.47.16 is not prior to, for or in substitution for, any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to claims under any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporationsuch policies.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Pyramid Oil Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminalcriminal or administrative, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of including any such claim, action, suit, proceeding or investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (itogether, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time, the Surviving Corporation (the “Indemnifying Party”) will, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law, and as may otherwise be required by the Company Organizational Documents (or any similar organizational document) of the Company or any of its Subsidiaries, when applicable, and any indemnity agreements applicable to any such Indemnified Parties may retain counsel Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, legal and other expenses (including local counsel) satisfactory to them, the reimbursement for reasonable legal and other fees and expenses incurred in advance of which shall be the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such claim, action, suit, proceeding or investigation, subject to the Surviving Corporation promptly after statements therefor are received Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and (ii) the Surviving Corporation shall use reasonable best efforts other fees and expenses paid in the vigorous defense advance if it is ultimately determined by a court of any competent jurisdiction that such matterIndemnified Party is not entitled to be indemnified under applicable Law; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall will not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counselselected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single action such claim, action, suit, proceeding or investigation, unless there is, as determined by is an actual conflict of interest among such Indemnified Parties such that one counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more cannot effectively represent all Indemnified Parties, in which case such additional number of counsel as are necessary.
(including local counselb) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party will (i) maintain in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and effect for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect if available, the current policies of directors’ and officers’ liability insurance policies maintained by XETA the Company immediately prior to the Effective Time (provided, provided that the Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts containing terms and conditions that are no not less advantageous in the aggregate to such the directors and officers of the Company) or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and directorsamounts and containing terms and conditions that are not less advantageous in the aggregate to the directors and officers of the Company, so long as such substitution does not result in gaps or lapses in coverage) each case with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective Time; provided, however, however that in no event shall will the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300annual premium for such coverage in excess of 200% of current the last annual premiums premium paid by XETA the Company for such insurance andprior to the date of this Agreement (the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the event the cost of such coverage shall exceed that amountMaximum Premium, the Surviving Corporation shall purchase as much coverage as possible will obtain that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for such amountan annual premium equal to the Maximum Premium. The Company represents that its current annual premium for director and officer insurance is set forth in Section 6.8(b) of the Company Disclosure Letter.
(c) The provisions of this Section 6.8 will survive the Closing and, after the Effective Time, are intended to be for the benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and their rights under this Section 6.8 are in addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or similar organizational document) of the Surviving Corporation or any of its Subsidiaries or otherwise.
(d) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their respective articles of incorporation or bylaws (or similar organizational document) for a period of six years after the Effective Time, provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, in the aggregate with respect to each such entity, no less advantageous to the intended beneficiaries than the corresponding provisions contained in such organizational documents as of the date of this Agreement.
(e) In the event that the Surviving Corporation 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 Persons, or (ii) transfers all or substantially all of its properties and or assets to any personPerson, then, then and in each such case, proper provision shall will be made so that the successors and applicable successors, assigns of the Surviving Corporation shall or transferees assume the obligations set forth in this Section 5.46.8.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation of Dorado and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries which before the Merger were Redfish Subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA Redfish or such Redfish Subsidiary as of the date of this Agreement, 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 adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Redfish or any of its subsidiaries the Redfish Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation Entity, shall, to the fullest extent permitted under Applicable Lawapplicable law, indemnify, indemnify and hold harmless and advance expenses to to, each present and former director, officer, employee, fiduciary and agent of XETA Redfish and each Redfish Subsidiary and each person who served as a director, officer, employee, fiduciary or agent of its subsidiaries another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of Redfish or any Redfish Subsidiary (collectivelyeach, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a an officer, director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactionstransactions contemplated hereby), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the later of the date of this Agreement or the Effective Time, in each case to the fullest extent permitted under Applicable Law the DGCL (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Lawthe DGCL, upon receipt from the Indemnified Party to whom expenses are advanced of an any undertaking to repay such advances as required under Applicable Lawthe DGCL). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain Redfish’s regularly engaged legal counsel or other counsel (including local counsel) satisfactory to them, and Redfish or the Surviving Entity, as the case may be, shall promptly pay the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly such counsel, after statements therefor are received and (ii) Redfish and the Surviving Corporation Entity shall use all reasonable best efforts in the vigorous defense of any such matter; provided, however, that neither Redfish nor the Surviving Corporation Entity shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that neither Redfish nor the Surviving Corporation Entity shall not be obligated pursuant to this subsection (bSection 6.4(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of Redfish or the Surviving CorporationEntity; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for For a period of six years after the Effective Time, the Surviving Corporation Entity shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA Redfish and the Redfish Subsidiaries (provided, provided that the Surviving Corporation Entity may substitute therefor third-party policies of at least the same coverage and amounts containing terms and conditions that which are no less advantageous to such officers and directors, directors so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to on or before the Effective Time; provided, however, that in no event shall the Surviving Corporation Entity shall not be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300pay annual premiums in excess of 250% of current the last annual premiums premium paid by XETA for Redfish prior to the date hereof (the amount of which premium is set forth in Schedule 6.4), but in such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation case shall purchase as much coverage as possible reasonably practicable for such amount.
(d) In the event the Surviving Corporation Entity or any of its respective 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 all or 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 Corporation Entity shall assume the obligations set forth in this Section 5.46.4.
(e) In The Surviving Entity shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the event that the Surviving Corporation should fail, at any time from indemnity and after the Effective Time, to comply with any of the foregoing other obligations set forth provided in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation6.4.
(f) The obligations of Parent Redfish and the Surviving Corporation Dorado under this Section 5.4 6.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 6.4 applies without the consent of each affected director, officer, employee, fiduciary and or agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 6.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.46.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter certificate of incorporation, bylaws or bylaws other governing documents of XETARedfish or its Subsidiaries, under Oklahoma Law any other indemnification agreement or arrangement, the DGCL or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries 7.7.1. OFFC shall contain provisions no less favorable maintain, or shall cause OFB to the persons covered thereby with respect to exculpationmaintain, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified effect for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after following the Effective Time, the Surviving Corporation shallcurrent directors’ and officers’ liability insurance policies maintained by CAB (provided, that OFFC may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses matters occurring prior to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time); provided, whether civilhowever, criminal, administrative or investigative, arising out of or pertaining that in no event shall OFFC be required to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of expend pursuant to this Agreement or any Section 7.7.1 more than 150% of the Transactionsannual cost currently expended by CAB with respect to such insurance (the “Maximum Amount”); provided, whether occurring before further, that if the amount of the annual premiums necessary to maintain or after procure such insurance coverage exceeds the Effective TimeMaximum Amount, whether asserted OFFC shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Amount. In connection with the foregoing, CAB agrees in order for OFFC to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or claimed substitute insurer with such representations as such insurer may request with respect to the reporting of any prior to, at or after the Effective Timeclaims.
7.7.2. In addition to Section 7.7.1, for a period of six years after the Effective Time, OFFC shall indemnify, defend and hold harmless each person who is now, or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of CAB (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorneys’ fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of OFFC, which consent shall not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each case a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of CAB if such Claim pertains to any matter of fact arising, existing or occurring before the Effective Time (including, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time (the “Indemnified Liabilities”), to the fullest extent as would have been permitted by CAB under Applicable NJ Banking Law (and under CAB’s Certificate of Incorporation and Bylaws, to the extent not prohibited by Delaware law. OFFC shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, by Delaware law (to the extent not prohibited by federal law) upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if the Indemnified Party shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.7.2 upon learning of any Claim, shall notify OFFC (but the failure so to notify OFFC shall not relieve it from any liability which it may have under this Section 7.7.2, except to the extent such failure materially prejudices OFFC) and shall deliver to OFFC the undertaking referred to in the previous sentence. In the event of any such claimClaim (whether arising before or after the Effective Time) (a) OFFC shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption OFFC shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, actionexcept that if OFFC elects not to assume such defense, suitor counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether or not any have yet actually arisen) issues which raise conflicts of interest between OFFC and the Indemnified Parties, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) reasonably satisfactory to them, and OFFC shall pay the reasonable fees and expenses of which such counsel for the Indemnified Parties, (b) except to the extent otherwise required due to conflicts of interest, OFFC shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be paid by the Surviving Corporation promptly after as statements therefor are received and unless there is a conflict of interest that necessitates more than one law firm, (iic) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation OFFC shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); , and provided, further, that the Surviving Corporation (d) no Indemnified Party shall not be obligated pursuant entitled to this subsection indemnification hereunder with respect to a matter as to which (bi) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties he or she shall have been adjudicated in any single action unless proceeding not to have acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of CAB, or (ii) in the event that a proceeding is compromised or settled so as to impose any liability or obligation upon an Indemnified Party, if there isis a determination that with respect to said matter said Indemnified Party did not act in good faith and in a manner he or she reasonably believed to be in, as determined by counsel or not opposed to, the best interests of CAB.
7.7.3. The obligations of OFFC provided under this Section 7.7 are intended to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained enforceable against OFFC directly by the Indemnified Parties at the expense and shall be binding on all respective successors and permitted assigns of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claimOFFC. The Surviving Corporation OFFC shall pay all reasonable expensescosts, including attorneys’ fees, that may be as incurred and in advance of the final disposition of any claim, action, suit, proceeding or investigation by any Indemnified Party in successfully enforcing the indemnity and other obligations provided for in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior 7.7 to the Effective Timefullest extent permitted under applicable law; provided, however, that in no event shall such payment of costs will be immediately reimbursed to OFFC by such Indemnified Party if they are not successful enforcing the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA indemnity or other obligations provided for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4)7.7. The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseapplicable law.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Effective Time, the Surviving Company and its Subsidiaries shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under the DGCL, honor and fulfill in all respects the obligations of the Company and the Company Subsidiaries under any and all indemnification agreements between the Company or any Company Subsidiary and any of their respective present or former directors and officers (collectively, the “Indemnified Parties”). In addition, the certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries Company shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, exculpation and indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of Company Charter or the date of this AgreementCompany Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from after the Effective Time in any manner that would affect adversely in any material respect the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorswho, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (includingTime, without limitation, were directors or officers of the matters contemplated by this Agreement)Company or any Company Subsidiary.
(b) From and For a period of six (6) years after the Effective Time, the Surviving Corporation shall, Company shall to the fullest extent permitted under Applicable applicable Law, indemnify, indemnify and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining relating to any action or omission in their capacity as a director, officer, employee, fiduciary director or agent (including, without limitation, any claim arising out officer of this Agreement the Company or any of the Transactions)Company Subsidiary, whether occurring on or before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case and to the fullest extent permitted under Applicable Law (and by Law, the Surviving Company shall pay any all expenses of each Indemnified Party in advance of the final disposition of any such action or proceeding Action, subject to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to indemnification. In the event of any such claim, action, suit, proceeding or investigationAction, (i) subject to the Indemnified Parties may retain counsel (including local counsel) satisfactory to themundertaking described in the previous sentence, the Surviving Company shall pay the reasonable fees and expenses of which shall be paid counsel selected by the Surviving Corporation Indemnified Parties, promptly after statements therefor are received and received, (ii) the Surviving Corporation Company shall use reasonable best efforts not settle, compromise or consent to the entry of any judgment in any pending or threatened Action to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents, and (iii) the Surviving Company shall cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation Company shall not be liable for any settlement effected without its the Surviving Company’s written consent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, provided further that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The rights of each Indemnified Party under this Section 6.04(b) shall be in addition to any rights such person may have under the certificate of incorporation or bylaws (or similar organizational documents) of the Company and the Surviving Corporation shall pay all reasonable expensesCompany or any of their Subsidiaries, including attorneys’ fees, that may be incurred by or under any Law or under any indemnification agreement of any Indemnified Party in enforcing with the indemnity and other obligations provided in this Section 5.4Company or any Company Subsidiary.
(c) From and for For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation shall Company to maintain in effect the current a directors’ and officers’ liability insurance policies maintained policy covering those persons who are currently covered by XETA the Company’s directors’ and officers’ liability insurance policy (provided, that the Surviving Corporation may substitute therefor policies a true and complete copy of which has been previously made available to Parent) with coverage in amount and scope at least as favorable, in the same coverage and amounts containing terms and conditions that are no less advantageous aggregate, to such officers persons as the coverage under the Company’s existing directors’ and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Timeofficers’ liability insurance policy; provided, however, that in no event shall Parent or the Surviving Corporation Company be required to expend pursuant to this Section 5.4(c6.04(c) more than an amount per year equal to 300250% of current the annual premiums premium currently paid by XETA the Company for such coverage; provided further that, if the annual premium of such insurance andcoverage exceeds such amount, Parent shall cause the Surviving Company to obtain a policy with the greatest coverage available for a cost not exceeding such amount. At Parent’s option, Parent may purchase prior to the Effective Time a six-year prepaid “tail policy” covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy, in which case Parent and the event Surviving Company shall be relieved of their obligations pursuant to the cost of such coverage shall exceed immediately preceding sentence; provided, that amountif a prepaid policy has been obtained prior to the Effective Time, the Surviving Corporation Company shall purchase as much coverage as possible (and Parent shall cause the Surviving Company to) maintain such policy in full force and effect for such amountits full term, and continue to honor the obligations thereunder.
(d) In the event Parent or the Surviving Corporation Company 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 of such consolidation or merger merger, or (ii) transfers all or 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 Parent or the Surviving Corporation Company, as the case may be, shall assume the obligations set forth in this Section 5.46.04.
(e) In The provisions of this Section 6.04 are (i) intended to be for the event benefit of, and shall be enforceable by, each Indemnified Party, and his or her heirs and Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under any certificate of incorporation or bylaws, by contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any Company Subsidiary for any of their respective directors, officers or other employees, it being understood and agreed that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth indemnification provided for in this Section 5.4, 6.04 is not prior to or in substitution for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) claims under such policies. The obligations of Parent and the Surviving Corporation Company under this Section 5.4 6.04 shall not be terminated or modified in such a manner as to adversely affect the rights of any director, officer, employee, fiduciary and agent Indemnified Party unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnified Party shall have consented in writing to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent such termination or modification (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom Indemnified Parties shall be third party beneficiaries of this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.46.04). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Exa Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for 7.9.1. For a period of six (6) years from after the Effective Time in any manner that would affect adversely Time, the rights thereunder of individuals Company shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after the date of this Agreement and to and including before the Effective Time were directorsTime, officers, employees, fiduciaries an officer or agents director of XETA CFB or any CFB Subsidiary (or any successor or predecessor thereof) (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of its subsidiaries the Company, which consent shall not be unreasonably withheld) of or in respect connection with any claim, action, suit, cause of actions action, proceeding or omissions investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of the fact that such person is or was a director, officer or employee of CFB if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by CFB under Applicable Law, indemnify, hold harmless Pennsylvania law and advance expenses to each present under CFB’s articles of incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and bylaws. The Company shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by CFB under Applicable LawPennsylvania law and under CFB’s articles of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under Applicable Law)this Section 7.9 upon learning of any Claim, shall notify the Company (but the failure so to notify the Company shall not relieve it from any liability which it may have under this Section 7.9, except to the extent such failure materially prejudices the Company) and shall deliver to the Company the undertaking referred to in the previous sentence.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) that either the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation Company shall assume the obligations set forth in this Section 5.47.9.
(e) In the event that the Surviving Corporation should fail7.9.3. The Company shall maintain, at any time from and after or shall cause Farmers National to maintain, in effect for up to six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of CFB (provided, that the Company may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable to comply the officers and directors of CFB) with any respect to matters occurring at or prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 7.9 an aggregate amount to exceed $45,000 with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the foregoing obligations set forth in this Section 5.4aggregate premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Company shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled premium equal to the rights Maximum Amount. In connection with the foregoing, CFB agrees in order for the Company to fulfill its agreement to provide directors and officers liability insurance policies for up to six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseprior claims.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate Certificate of incorporation Incorporation and bylaws Bylaws of the Surviving Corporation Corporation, and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws or comparable organizational documents of XETA each Subsidiary of the Surviving Corporation, will contain provisions with respect to indemnification that are no less favorable than those set forth in the Certificate of Incorporation and Bylaws of the Company, or the certificate of incorporation and bylaws or comparable organizational documents of such Subsidiary of the Company, as of the case may be, in each case on the date of this Agreement, which provisions shall will not be amended, repealed or otherwise modified for a period of six years from and after the Effective Time in any manner that would affect adversely the rights thereunder of individuals who that at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries directors or agents officers of XETA the Company or any Subsidiary of its subsidiaries the Company, in respect of actions or omissions occurring at or prior to the Effective Time (includingTime, without limitation, the matters contemplated unless such modification will be required by this Agreement)Law.
(b) From and after the Effective Time, the Surviving Corporation shallwill, to the fullest extent required or permitted under Applicable Delaware Law, indemnify, indemnify and hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent director or officer of XETA and each of its subsidiaries the Company (collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") against all costs and expenses (including attorneys’ ' fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative based on the fact that such Person is or investigative, was a director or officer of the Company or any Subsidiary of the Company and arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary occurring at or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted including without limitation actions taken in connection with, or claimed prior pursuant to, at or after the Effective Timeterms of this Agreement, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall will pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as if required under Applicable Delaware Law), provided, however, that the foregoing indemnity will not apply to any act or failure to act which a court of competent jurisdiction determines in an order or decision not subject to appeal constituted misappropriation of cash or other property of the Company or any of its Subsidiaries. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, Surviving Corporation will pay the reasonable fees and expenses of which shall be paid counsel selected by the Indemnified Parties, which counsel will be reasonably satisfactory to the Surviving Corporation Corporation, promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts will cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall will not be liable for any settlement effected without its written consent (which consent shall will not be unreasonably withheld, delayed or conditioned); and provided, further, provided further that the Surviving Corporation shall will not be obligated pursuant to this subsection (bSECTION 6.4(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there isexcept to the extent, as determined by counsel to the Indemnified Parties, that there may be one or more legal defenses available to one Indemnified Party that are different from or in addition to those available to the other Indemnified Parties that would, in the judgment of such counsel, prohibit such counsel from representing all Indemnified Parties under applicable standards the rules of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Partiesethics, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in . Parent hereby guarantees the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other Corporation's obligations provided in under this Section 5.46.4(b).
(c) From and The Surviving Corporation will use its reasonable best efforts to maintain in effect for a period of six years from and after the Effective Time, the Surviving Corporation shall maintain in effect the current Time directors’ ' and officers’ ' liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions covering those Persons that are no less advantageous covered by the Company's directors' and officers' liability insurance policy as of the date of this Agreement on terms comparable to such officers and directors, so long as such substitution does not result in gaps or lapses in existing insurance coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall will the Surviving Corporation be required to expend pursuant to this Section 5.4(cSECTION 6.4(C) more than an amount per year equal to 300150% of current annual premiums paid by XETA the Company for such insurance and, in as of the event the cost date of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountthis Agreement.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall will not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Surviving Corporation shall or, at Parent's option, Parent, will assume the obligations set forth in this Section 5.4SECTION 6.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation Following the Effective Time, Mid Penn shall indemnify, defend and bylaws of the Surviving Corporation and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of or who has been at any time before the date hereof or who becomes before the Effective Time, an officer, director or employee of this AgreementBrunswick or Brunswick Bank (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of Mid Penn, which provisions consent shall not be amendedunreasonably withheld, repealed conditioned or otherwise modified for delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a period “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of six years from the Effective Time in fact that such person is or was a director, officer or employee of Brunswick or a Brunswick Subsidiary if such Claim pertains to any manner that would affect adversely the rights thereunder matter of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorsfact arising, officers, employees, fiduciaries existing or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by Brunswick under Applicable Law, indemnify, hold harmless New Jersey law and advance expenses to each present under Brunswick’s certificate of incorporation and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and bylaws. Mid Penn shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by Brunswick under Applicable LawNew Jersey law and under Brunswick’s certificate of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required advance payments if such Indemnified Party shall be adjudicated or determined to be not entitled to indemnification. Any Indemnified Party wishing to claim indemnification under Applicable Law). In the event this subsection upon learning of any Claim, shall notify Mid Penn (but the failure so to notify Mid Penn shall not relieve it from any liability that it may have under this subsection, except to the extent such claim, action, suit, proceeding or investigation, (ifailure materially prejudices Mid Penn) and shall deliver to Mid Penn the Indemnified Parties may retain counsel (including local counsel) satisfactory undertaking referred to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4previous sentence.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(db) In the event the Surviving Corporation that either Mid Penn 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 bank or entity of such consolidation or merger or (ii) transfers all or substantially all 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 Corporation Mid Penn shall assume the obligations set forth in this Section 5.47.10.
(ec) In the event that the Surviving Corporation should failMid Penn shall maintain, at any time from and after or shall cause Mid Penn Bank to maintain, in effect for six (6) years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Brunswick (provided, that Mid Penn may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time, provided, however, that in no event shall Mid Penn be required to expend pursuant to this subsection more than two hundred percent (200%) of the foregoing obligations set forth in this Section 5.4annual cost currently expended by Brunswick with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Mid Penn shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, Xxxxxxxxx agrees in order for Mid Penn to fulfill its agreement to provide directors and officers liability insurance policies for six (6) years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(fd) The obligations of Parent and the Surviving Corporation Mid Penn provided under this Section 5.4 shall not 7.10 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against Mid Penn directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseMid Penn.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation (the "Indemnifying Party") shall, as to any claim or claims made or asserted (even if not resolved) prior to the fullest extent permitted under Applicable Lawthird anniversary of the Effective Time, indemnify, defend and hold harmless and advance expenses each person who is now, or has been at any time prior to each present and former the date hereof or who becomes prior to the Effective Time a director, officer, employee, fiduciary and employee or agent of XETA and each the Company or any of its subsidiaries Subsidiaries (collectivelyeach, the “an "Indemnified Parties”Party") against (i) all losses, claims, damages, costs and expenses (including attorneys’ ' fees), judgmentsliabilities, fines, losses, claims, damages, inquiries, liabilities judgments and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding proceeding, or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, for or arises in whole or in part out of, the fact that such Indemnified Party is or was a period director, officer, employee or agent of six years after the Company or any of its Subsidiaries or in the case of a present or former director, officer or employee of the Company or a Subsidiary, a fiduciary of any employee benefit plan or arrangement of the Company or any of its Subsidiaries and, in either case relates to or arises out of any action or omission occurring at or prior to the Effective TimeTime ("Indemnified Liabilities"), and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest full extent a corporation is permitted under Applicable Law applicable law to indemnify its own directors, officers, employees or agents, as the case may be; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Without limiting the foregoing in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (and shall whether arising prior to or after the Effective Time), (w) the Indemnifying Party will pay any expenses in advance of the final disposition of any such action claim, action, suit, proceeding or proceeding investigation to each Indemnified Party to the fullest full extent permitted under Applicable Law, upon receipt from by applicable law provided that the Indemnified Party person to whom expenses are advanced of provides an undertaking to repay such advances advance if it is ultimately determined that such person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Indemnifying Parties; (y) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to the final sentence of this paragraph) promptly as required statements therefor are received; and (z) the Indemnifying Parties shall use all commercially reasonable efforts to assist in the vigorous defense of any such matter. Any Indemnified Party wishing to claim indemnification under Applicable Law). In the event this Section, upon learning of any such claim, action, suit, proceeding or investigation, (i) shall notify the Indemnifying Party, but the failure so to notify an Indemnifying Party shall not relieve it from any liability which it may have under this paragraph except to the extent such failure irreparably prejudices such party. The Indemnified Parties as a group may retain counsel (including local counsel) satisfactory only one law firm to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any represent them with respect to each such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action matter unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel .
(including local counselb) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expensesshall, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing until the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period third anniversary of six years after the Effective Time, cause to be maintained in effect, to the Surviving Corporation shall maintain in effect extent available, the current policies of directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company and its Subsidiaries as of the date hereof (provided, that the Surviving Corporation may substitute therefor or policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coveragethe insured parties) with respect to matters occurring claims arising from facts or events that occurred on or prior to the Effective Time; providedand in no event shall the coverage for the transactions contemplated hereby, however, be excluded: provided that in no event shall the Surviving Corporation be required obligated to expend in order to maintain or procure insurance coverage pursuant to this Section 5.4(c) more than an paragraph any amount per year equal to 300% annum in excess of current annual the aggregate premiums paid by XETA the Company and its Subsidiaries as of the date hereof for such insurance andpurpose, but in the event the cost of such coverage shall exceed that amount, the Surviving Corporation case shall purchase as much coverage as possible for such maximum annual amount; and provided, further, that in the event any claim or claims are asserted or made within such three-year period, the obligations of the Surviving Corporation to maintain in effect insurance shall continue until the disposition of any and all claims.
(c) In the event that any action, suit, proceeding or investigation relating to this Agreement or to the transactions contemplated by this Agreement is commenced, whether before or after the Closing, the parties hereto agree to cooperate and use their respective reasonable efforts to vigorously defend against and respond thereto.
(d) In This Section 6.8 shall survive the event Effective Time and is intended to benefit the Surviving Corporation or any of its Indemnified Parties and their successors or and 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 binding on all or 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 Corporation shall assume Purchaser, the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from Company and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(fe) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any directorhonor, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights fullest extent permitted by applicable law, all indemnification agreements existing as of third-party beneficiaries under, this Section 5.4). The rights the date hereof between the Company and any of each the Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseParties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time and until the sixth anniversary of the Effective Time and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated, Parent shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each of its subsidiaries Company or Parent (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriescosts and expenses (including reasonable attorneys’ fees), liabilities Liabilities, judgments, fines and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation Legal Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based directly or indirectly (in whole or in part) on, for or arises directly or indirectly (in whole or in part) out of, the fact that such Indemnified Party is or was a period director or officer of six years after Company or Parent, as the case may be, and relates to or arises out of any action or omission occurring at or prior to the Effective Time, Time (including in each case connection with this Agreement or any of the transactions contemplated hereby) (“Indemnified Liabilities”) to the fullest extent permitted permissible under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation Parent shall not be liable for any settlement effected without its written consent (Indemnified Liabilities which consent shall not be unreasonably withheldoccur as a result of fraud or the unlawful criminal actions, delayed gross negligence or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions willful misconduct of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by Party. Without limiting the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, thatforegoing, in the event that any claim for indemnification such Legal Action is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by brought against any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years whether arising prior to or after the Effective Time), Parent will pay expenses in advance to each Indemnified Party or promptly reimburse each Indemnified Party for such expenses as such expenses are incurred to the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained fullest extent permitted by XETA (provided, applicable Law; provided that the Surviving Corporation may substitute therefor policies Person to whom expenses are advanced provides any undertaking required by applicable Law to repay such advance if it is ultimately determined in a final, non-appealable judgment of at least the same coverage and amounts containing terms and conditions a court of competent jurisdiction that are no less advantageous such Person is not entitled to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect indemnification. Any Indemnified Party wishing to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation indemnification under this Section 5.4 5.11, upon learning of any such Legal Action, shall notify Parent, but the failure so to notify Parent shall not be terminated or modified in such a manner as to adversely affect relieve Parent from any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (Liability which it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under this paragraph except to the charter or bylaws of XETA, under Oklahoma Law or otherwiseextent such failure actually and materially prejudices Parent.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, each of Parent and the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, agrees that it will indemnify and hold harmless and advance expenses to each present and former directordirector and officer of the Company (in each case, officerwhen acting in such capacity), employee, fiduciary and agent determined as of XETA and each of its subsidiaries the Effective Time (collectively, the “Indemnified Parties”) ), against all any costs and or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, inquiries, liabilities and settlement amounts paid “Costs”) incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of matters existing or pertaining occurring at or prior to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period to the fullest extent that the Company would have been permitted under Delaware Law and its Certificate of six years after Incorporation or Bylaws in effect on the Effective Time, in each case date of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of applicable Law; provided that the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party Person to whom expenses are advanced of provides an undertaking to repay such advances as if it is ultimately determined that such Person is not entitled to indemnification); and provided further that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Applicable Law)Delaware Law and the Company’s Certificate of Incorporation and Bylaws shall be made by independent counsel selected by the Surviving Corporation. In the event of any such Proceeding, (x) neither Parent nor Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Proceeding in which indemnification could be sought by such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents (such consent not to be unreasonably withheld, conditioned or delayed), and (y) the Surviving Corporation shall cooperate in the defense of any such matter. In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party under this Section 6.10, (i) Parent and the Surviving Corporation shall have the right to control the defense thereof after the Effective Time and Parent and the Surviving Corporation shall not be liable to any Indemnified Parties for any legal expenses of other counsel or any other expenses incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent and the Surviving Corporation shall be obligated pursuant to this clause (i) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest; provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent; and provided further that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.10, upon learning of any such claim, action, suit, proceeding or investigation, (i) shall promptly notify Parent thereof, but the Indemnified Parties may retain counsel (including local counsel) satisfactory failure to them, the reasonable fees and expenses of which so notify shall be paid by not relieve Parent or the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any liability it may have to such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel Party except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between extent such failure materially prejudices the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4indemnifying Party.
(c) From and for a period of six years after the Effective Time, the provisions in the Surviving Corporation’s certificate of incorporation and bylaws with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Certificate of Incorporation and Bylaws in effect as of the date hereof.
(d) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation shall maintain in effect as of the Effective Time to, obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of at least six years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance policies maintained by XETA and fiduciary liability insurance (providedcollectively, that the Surviving Corporation may substitute therefor policies “D&O Insurance”) with benefits and levels of coverage at least as favorable as the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) Company’s existing policies with respect to matters existing or occurring at or prior to the Effective TimeTime (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth in Section 6.10 of the Company Disclosure Schedule. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date of this Agreement with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than for such policies an annual premium amount per year equal to in excess of 300% of current the annual premiums currently paid by XETA the Company for such insurance insurance; and, in provided further that if the event the cost annual premiums of such insurance coverage shall exceed that such amount, the Surviving Corporation shall purchase as much obtain a policy with the greatest coverage as possible available for a cost not exceeding such amount.
(d) In the event . If Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving company corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any personindividual, corporation or other entity, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 5.46.10. Parent agrees to honor and perform under, and to cause the Surviving Corporation to honor and perform under, all indemnification agreements entered into by the Company or any of its subsidiaries with any Indemnified Party and set forth on Section 3.8(a)(ix) of the Company Disclosure Schedule.
(e) In The provisions of this Section 6.10 (other than Section 6.10(g)) are intended to be for the event that benefit of, and shall be enforceable by, each of the Surviving Corporation should failIndemnified Parties and their respective heirs, at successors and representatives.
(f) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any time from rights such Indemnified Parties may have under the Certificate of Incorporation or Bylaws of the Company or under any applicable Contracts or Laws.
(g) From and after the Effective Time, Parent shall not take any action to comply prevent the Company’s subsidiaries from complying with any obligations or rights to indemnification, advancement of expenses and exculpation (as applicable) for periods prior to the foregoing obligations set forth Closing Date as provided in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense their respective certificates of incorporation or other basis for nonperformance which bylaws (or comparable organizational documents) as in effect on the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention date of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving CorporationAgreement.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation 7.9.1. After the Effective Time, BMBC shall indemnify, defend and bylaws of the Surviving Corporation and the organizational documents of hold harmless each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationperson who is now, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of this AgreementFKF or an FKF Subsidiary (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of BMBC, which provisions consent shall not be amendedunreasonably withheld) of or in connection with any claim, repealed action, suit, proceeding or otherwise modified for investigation, whether civil, criminal, or administrative (each a period “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of six years from the Effective Time in fact that such person is or was a director or officer of FKF or an FKF Subsidiary if such Claim pertains to any manner that would affect adversely the rights thereunder matter of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directorsfact arising, officers, employees, fiduciaries existing or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreementhereby).
(b) From and after , regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, the Surviving Corporation shall, to the fullest extent as would have been permitted by FKF under Applicable Lawthe PBCL and under FKF’s articles of incorporation and bylaws or equivalent governing documents of any FKF Subsidiary, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Timeapplicable, in each case to as in effect on the fullest extent permitted under Applicable Law (and date hereof. BMBC shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by FKF under Applicable Lawthe PBCL and under FKF’s articles of incorporation and bylaws, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as advance payments if such Indemnified Party shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.9.1 upon learning of any Claim, shall notify BMBC (but the failure so to notify BMBC shall not relieve it from any liability which it may have under this Section 7.9.1, except to the extent such failure prejudices BMBC) and shall deliver to BMBC the undertaking referred to in the previous sentence. Without limiting the foregoing, in any case in which approval by BMBC, one of its Subsidiaries or the board of directors thereof is required under Applicable Law)to effect any indemnification, at the election of the Indemnified Party, the determination of any such approval shall be made by a majority of the independent directors then in office or, if no such directors are then in office, by independent counsel mutually agreed upon between BMBC and the Indemnified Party.
7.9.2. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation either BMBC or any of its successors or assigns (ia) consolidates with or merges into any other person and shall not be the continuing or surviving company bank or entity of such consolidation or merger or (iib) transfers all or 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 Corporation BMBC shall assume the obligations set forth in this Section 5.47.9.
7.9.3. BMBC shall maintain, or shall cause BMT to maintain, in effect for three (e3) In the event that the Surviving Corporation should fail, at any time from and after years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of FKF (provided, that BMBC may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall BMBC be required to expend per year pursuant to this Section 7.9.3 more than one hundred fifty percent (150%) of the foregoing obligations set forth in this Section 5.4annual cost currently expended by FKF with respect to such insurance (the “Maximum Amount”); provided, for any reasonfurther, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which that if the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent amount of the obligations annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, BMBC shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Surviving CorporationMaximum Amount. In connection with the foregoing, FKF agrees in order for BMBC to fulfill its agreement to provide directors and officers liability insurance policies for three (3) years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(f) 7.9.4. The obligations of Parent and the Surviving Corporation BMBC provided under this Section 5.4 shall not 7.9 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against BMBC directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary their respective heirs and agent (it being expressly agreed that the directors, officers, employees, fiduciaries representatives and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseBMBC.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Without limiting any additional rights that any employee may have under any employment agreement or Company Plan as in effect on the date hereof and which has previously been made available to Parent, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Corporation to indemnify and hold harmless each present (as of the Effective Time) and former officer and director of the Company and its subsidiaries (the “Indemnified Parties”), 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 an Indemnified Party is or was an officer or director of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or non-profit entity or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the 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. In the event of any such claim, action, suit, proceeding or investigation, (A) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation within ten (10) Business Days of receipt by the Surviving Corporation from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
(b) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpationindemnification, indemnification and advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the certificate Company’s Certificate of incorporation Incorporation and bylaws of XETA as of the date of this AgreementBylaws, 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 adversely the rights thereunder of individuals who any such individuals.
(c) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time, to obtain and fully pay the premium for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at any time least six years from and after the date of this Agreement and to and including the Effective Time were from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, officers“D&O Insurance”) with terms, employeesconditions, fiduciaries retentions and limits of liability that are at least as favorable, in the aggregate, as the Company’s existing policies with respect to any actual or agents alleged error, misstatement, misleading statement, act, omission, neglect, breach of XETA duty or any matter claimed against a director or officer of the Company or any of its subsidiaries by reason of him or her serving in respect of actions such capacity that existed or omissions occurring occurred at or prior to the Effective Time (includingincluding in connection with this Agreement or the transactions or actions contemplated hereby); provided, without limitationhowever, that in no event shall the matters contemplated Company or the Surviving Corporation expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by this Agreement).
(b) From the Company for such insurance. If the Company and after the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable, in the aggregate, as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are at least as favorable, in the aggregate, as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(d) Notwithstanding anything herein to the fullest extent permitted under Applicable Lawcontrary, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with if any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior tobefore, at or after the Effective Time, for a period ) is made against any Indemnified Party on or prior to the sixth anniversary of six years after the Effective Time, the provisions and benefits of this Section 6.7 shall continue in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of full effect until the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, (i) and shall be enforceable by, each of the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which their respective heirs and legal representatives. The indemnification provided for herein shall not be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense deemed exclusive of any such matter; providedother rights to which an Indemnified Party is entitled, howeverwhether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation Parent 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 substantially all 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 Corporation or Parent, as the case may be, shall assume succeed to the obligations set forth in this Section 5.46.7.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Primedia Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, OVB shall indemnify and hold harmless each individual who is now, or who has been at any time before the date of this Agreement, or who becomes before the Effective Time, an officer or director of MLB (each, an “Indemnified Individual,” and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified PartiesIndividuals”) (i) against all costs and losses, claims, damages, costs, expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and or judgments or amounts that are paid in settlement amounts paid (which settlement shall require the prior written consent of OVB) of or in connection with any threatened or actual claim, action, suit, proceeding, investigation or other legal proceeding, whether civil, criminal, administrative or investigative (each, a “Claim” and collectively, “Claims”), (ii) and an Indemnified Individual who is, or is threatened to be made, a party or witness, arising out of the fact that such individual is or was a director or officer of MLB if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including the Merger and the other Contemplated Transactions), regardless of whether such Claim is asserted or claimed before or after the Effective Time, to the fullest extent permitted under MLB’s articles of incorporation and bylaws and applicable Law. OVB shall pay reasonable expenses (including reasonable attorneys’ fees) in advance of the final disposition of any such proceeding to each Indemnified Individual to the extent permissible under applicable Law upon receipt of an undertaking to repay such advance payments if such Indemnified Individual shall be adjudicated or investigation determined to be not entitled to indemnification under this Section 5.12.
(b) Any Indemnified Individual wishing to claim indemnification under Section 5.12(a), upon learning of any Claim, shall promptly notify OVB thereof; provided, however, that failure to so notify will not affect the obligations of OVB under Section 5.12(a) unless and to the extent that OVB is actually prejudiced as a consequence. In the event of any such Legal Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) OVB shall have the right to assume the defense thereof and OVB shall not be liable to such Indemnified Parties Individuals for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Individuals in connection with the defense thereof, except that if OVB elects not to assume such defense, Indemnified Individuals may retain counsel (including local counsel) satisfactory to them, the and OVB shall pay all reasonable fees and expenses of which shall be paid by the Surviving Corporation such counsel for Indemnified Individuals promptly after as statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterreceived; provided, however, that OVB shall be obligated pursuant to this Section 5.12(b) to pay for only one firm of counsel for all Indemnified Individuals in any jurisdiction, (ii) Indemnified Individuals will cooperate in the Surviving Corporation defense of any such Claim, and (iii) OVB shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned)consent; and provided, further, that the Surviving Corporation OVB shall not be obligated pursuant have any obligation hereunder to this subsection (b) to pay any Indemnified Individual when and if a court of competent jurisdiction shall determine, and such determination shall have become final, that the fees and expenses indemnification of more than one counsel (plus appropriate local counsel) for all such Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, Individual in the event that any claim for indemnification manner contemplated under Section 5.12(a) is asserted or made prohibited by applicable Law.
(c) Each of OVB and MLB shall use commercially reasonable efforts to cause the individuals serving as officers and directors of MLB immediately prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred covered by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA tail policy obtained from MLB’s current insurance carrier (provided, that the Surviving Corporation may substitute therefor policies “Tail Insurance Policy”) of at least substantially the same coverage and amounts containing terms and conditions that which are no generally not less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) than MLB’s current policy with respect to matters acts or omissions occurring prior to the Effective TimeTime that were committed by such officers and directors in their capacity as such for a period of four (4) years; provided, however, that in no event shall the Surviving Corporation cost of the Tail Insurance Policy be more than two hundred percent (200%) of the current amount expended on an annual basis by MLB for its current policy; provided, further, that if the Tail Insurance Policy cannot be obtained as provided by this Section 5.12(c), OVB shall use its commercially reasonable efforts to obtain as much comparable insurance as is available; provided, further, that officers and directors of MLB may be required to expend pursuant make application and provide customary representations and warranties to this Section 5.4(c) more than an amount per year equal to 300% insurance carrier for the purpose of current annual premiums paid by XETA for such insurance and, in obtaining the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountTail Insurance Policy.
(d) In Prior to the event Effective Time, MLB and OVB shall cooperate to determine the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into most appropriate methodology to obtain “tail” insurance coverage at such limits, mutually agreeable to the parties, for Errors and Omissions, Bankers and Blanket Bond coverage and any other person and shall not be the continuing or surviving company or entity insurance policies of such consolidation or merger or (ii) transfers all or 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 Corporation shall assume the obligations set forth in this Section 5.4MLB as mutually agreed.
(e) In the event that the Surviving Corporation should fail, at any time from and after This Section 5.12 shall survive the Effective Time, Time and is intended to comply with any benefit each Indemnified Individual (each of the foregoing obligations set forth in whom shall be entitled to enforce this Section 5.4, for any reason, Parent 5.12 against OVB) and shall be responsible therefor binding on all successors and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention assigns of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving CorporationOVB.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate In the event of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from who becomes prior to the Effective Time in any manner that would affect adversely the rights thereunder Time, a director or officer or employee of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA Seller or any of its subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in respect whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of actions the Seller, any of the Seller's subsidiaries or omissions occurring at any of their respective predecessors or prior to (ii) this Agreement or any of the Effective Time (includingtransactions contemplated hereby, without limitation, the matters contemplated by this Agreement).
(b) From and whether in any case asserted or arising before or after the Effective Time, the Surviving Corporation shallparties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, the Buyer shall indemnify and hold harmless, as and to the fullest extent permitted under Applicable Lawby law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “such Indemnified Parties”) Party against all costs and expenses (including attorneys’ fees), judgments, fines, any losses, claims, damages, inquiriesliabilities, liabilities costs, expenses (including reasonable attorney's fees and settlement expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted of arising before or after the Effective Time), whether civilthe Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer; provided, criminalhowever, administrative that (w) the Buyer shall have the right to assume the defense thereof and upon such assumption the Buyer or investigative, arising out of or pertaining the Surviving Bank shall not be liable to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, Indemnified Party for any claim arising out legal expenses of this Agreement other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if the Buyer elects not to assume such defense or counsel for the Indemnified Parties and reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Transactions)Buyer and the Indemnified Parties, whether occurring before or the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Effective TimeBuyer, whether asserted or claimed prior toand the Buyer shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, at or after (x) the Effective TimeBuyer shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties, unless the proposed counsel for a period the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of six years after the Effective Timeinterest among such parties, in each which case the Buyer shall pay the reasonable fees and expenses of one additional counsel to the fullest extent permitted under Applicable Law necessary to avoid such conflict, (y) the Buyer shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (z) the Buyer shall pay have no obligation hereunder to any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to the fullest extent permitted claim Indemnification under Applicable Lawthis Section 6.6, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event learning of any such claim, action, suit, proceeding or investigation, shall notify the Buyer thereof, provided, that the failure to so notify shall not affect the obligations of the Buyer under this Section 6.6 except to the extent such failure to notify materially prejudices the Buyer. The Buyer's obligations under this Section 6.6 shall continue in full force and effect for a period of six (i6) years from the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matterEffective Time; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in <PAGE> 39 respect of any claim asserted or made within such claim period shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(cb) From The Buyer shall maintain the Seller's (including its subsidiaries') existing directors' and officers' liability insurance (the "D&O Insurance") covering persons who are currently covered by the Seller's D&O Insurance for a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain Time on terms no less favorable than those in effect on the current directors’ date hereof and officers’ liability insurance policies maintained by XETA (provided, that shall at the Surviving Corporation may substitute therefor policies Effective Time provide evidence of at least the same such extension of coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective TimeSeller; provided, however, that the Buyer may substitute therefor policies providing substantially comparable coverage and containing terms and conditions no less favorable than those in no event shall effect on the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in date hereof. In connection with the event the cost of such coverage shall exceed that amountforegoing, the Surviving Corporation shall purchase Seller agrees to provide such insurer or substitute insurer with such representations as much coverage as possible for such amountinsurer may request with respect to the reporting of any prior claims.
(dc) In the event the Surviving Corporation Buyer 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 merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall Buyer assume the obligations set forth in this Section 5.46.6.
(ed) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the The provisions of this subsection (e) Section 6.6 are intended to be a primary obligation of Parent and not merely a guarantee by Parent of for the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to the rights of third-party beneficiaries underenforceable by, this Section 5.4). The rights of each Indemnified Party hereunder and his or her heirs and representatives, and nothing herein shall be in addition to affect any other indemnification rights such that any Indemnified Party and his or her heirs and representatives may have under the charter Articles of Organization or bylaws By-Laws of XETAthe Seller or the equivalent documents of any of the Seller's subsidiaries, under Oklahoma Law any contract or otherwiseapplicable law.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of six years from and after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, First Federal Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any time from and after before the date of this Agreement and to and including hereof or who becomes before the Effective Time were directorsTime, officersan officer or director of Alpena Banking Corporation or an Alpena Banking Subsidiary (the “Indemnified Parties”) against all losses, employeesclaims, fiduciaries damages, costs, expenses (including attorney’s fees), liabilities or agents judgments or amounts that are paid in settlement of XETA or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of its subsidiaries in respect the fact that such person is or was a director, officer or employee of actions Alpena Banking Corporation or omissions an Alpena Banking Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or prior to before the Effective Time (including, without limitation, the matters Merger and the other transactions contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Law, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ feeshereby), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened regardless of whether such Claim is asserted or actual claim, action, suit, proceeding or investigation (whether arising claimed before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out . The obligation of or pertaining First Federal Bancorp to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case Indemnified Parties shall be to the fullest extent as would have been permitted by Alpena Banking Corporation under Applicable Law (Alpena Banking Corporation’s Articles of Incorporation and Bylaws. First Federal Bancorp shall also pay any all of an Indemnified Party’s expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Lawextent, upon receipt from and in accordance with the Indemnified Party to whom expenses are advanced required procedures, of an undertaking to repay such advances as required under Applicable Law). In the event Alpena Banking Corporation’s Articles of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees Incorporation and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection Bylaws.
(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation If either First Federal Bancorp 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 bank or entity of such consolidation or merger or (ii) transfers all or 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 Corporation First Federal Bancorp shall assume the obligations set forth in this Section 5.46.08.
(ec) In the event that the Surviving Corporation should failFirst Federal Bancorp shall use its best efforts to maintain, at any time from and after or shall cause First Federal Bank to maintain, in effect for three years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Alpena Banking Corporation (provided, that First Federal Bancorp may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to comply with any matters occurring at or prior to the Effective Time; provided, however, that in no event shall First Federal Bancorp be required to expend pursuant to this Section 6.08(c) an amount that in the aggregate is more than 100% of the foregoing obligations set forth in this Section 5.4annual premiums (the “Maximum Amount”) currently paid by Alpena Banking Corporation for such insurance and, for any reason, Parent shall be responsible therefor and hereby agrees if First Federal Bancorp is unable to perform maintain such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except policy as would be prohibited by Applicable Law), it being the intention a result of this subsection proviso, First Federal Bancorp shall obtain as much comparable insurance as is available for such Maximum Amount; provided further, that First Federal Bancorp may (ei) that request Alpena Banking Corporation to obtain an extended reporting period endorsement under Alpena Banking Corporation’s existing directors’ and officers’ liability insurance policy or (ii) substitute therefor “tail” policies the officersmaterial terms of which, directorsincluding coverage and amount, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent are no less favorable to such persons in any material respect than Alpena Banking Corporation’s existing insurance policies as of the obligations date hereof. In connection with the foregoing, Alpena Banking Corporation agrees in order for First Federal Bancorp to fulfill its agreement to provide directors’ and officers’ liability insurance policies for three years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of the Surviving Corporationany prior claims.
(fd) The obligations of Parent and the Surviving Corporation First Federal Bancorp provided under this Section 5.4 shall not 6.08 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary enforceable against First Federal Bancorp directly by the Indemnified Parties and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, binding on all respective successors and entitled to the rights permitted assigns of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseFirst Federal Bancorp.
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Samples: Merger Agreement (First Federal of Northern Michigan Bancorp, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation, to the fullest greatest extent permitted under Applicable by Law, indemnifyto indemnify and hold harmless, hold harmless and advance reasonable expenses as incurred to each the greatest extent permitted by Law, the present and former director(and any individuals who may become prior to the Effective Time) officers, officer, employee, fiduciary and agent directors of XETA the Company and each of its subsidiaries the Company Subsidiaries (collectively, the “Indemnified Parties” and singularly the “Indemnified Party”) against any and all costs and or expenses (including reasonable attorneys’ feesfees and expenses), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in settlement actually and reasonably incurred by him or her in connection with any actual or threatened or actual claim, action, suit, proceeding proceeding, or investigation (whether arising before or after the Effective Time)investigation, whether civil, criminal, administrative regulatory or investigative, in which the Indemnified Party is or may be a defendant, and which arises out of, relates to or is in connection with any acts or omissions occurring or alleged to have occurred, prior to or at the Effective Time, and which are based on or arises out of the fact that the Indemnified Party was an officer, director or employee of the Company or one of the Company Subsidiaries, including the approval of this Agreement, the Merger or the other transactions contemplated by this Agreement or arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of the transactions contemplated by this Agreement or any of the Transactions), whether occurring before or after the Effective TimeAgreement, whether asserted or claimed prior to, at or after the Effective Time, for provided that any such Indemnified Party provides an undertaking, to the extent permitted by the MBCA, to repay such advancement if it is ultimately determined that the Indemnified Party is not entitled to indemnification and/or advancement. Such indemnification and advancement referred to herein shall only apply in excess of any and all available insurance, including, but not limited to, directors and officers liability insurance, fiduciary liability insurance and errors and omissions insurance available to the Indemnified Party.
(b) For a period of six (6) years after from the Effective Time, in each case Parent shall either cause to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain maintained in effect the current policies of directors’ and officers’ liability insurance policies and fiduciary liability insurance maintained by XETA (provided, that the Company and the Company Subsidiaries or cause to be provided substitute policies or purchase or cause the Surviving Corporation may substitute therefor policies to purchase, a “tail policy,” in either case of at least the same coverage and amounts amounts, and containing terms terms, conditions, retentions and conditions limits of liability that are no not less advantageous to in the aggregate than such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) policies with respect to matters occurring coverage for liability for claims arising from facts or events that occurred on or prior to the Effective Time; provided, however, that (i) such policies may, in the Surviving Corporation’s sole discretion, be one or more “tail” policies for all or any portion of the full six-year period; and (ii) in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300250% of the current annual premiums premium (on an annualized basis) paid prior to the date hereof by XETA the Company for such insurance andas specified in Section 6.9(b) of the Company Disclosure Schedule (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto and provided, in further, that if the event amount of the cost of annual premiums necessary to maintain or procure such insurance coverage shall exceed that amountexceeds the Maximum Amount, the Surviving Corporation shall purchase as much coverage as possible maintain or procure, for such amountsix-year period, the most advantageous policy of directors’ and officers’ insurance (including, in the reasonable judgment of the Surviving Corporation, “tail” coverage) obtainable for an annual premium equal to the Maximum Amount. Section 6.9(b) of the Company Disclosure Schedule sets forth the Company’s last annual premium paid prior to the date hereof and the current premium (on an annualized basis) paid prior to the date hereof for its officers’ and directors’ liability insurance. Parent shall have the right to arrange and place insurance using its own insurance agent in advance of the Effective Time.
(dc) In the event If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving company corporation or entity of such consolidation or merger merger, or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision provisions shall be made prior to any such transaction being consummated so that the successors and assigns of the Surviving Corporation shall assume all of the obligations set forth in this Section 5.46.9.
(ed) In the event that the Surviving Corporation should fail, at any time from From and after the Effective Time, to comply with any of until the foregoing obligations set forth in this Section 5.4sixth (6th) year anniversary thereof, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under agree not to, directly or indirectly, amend, modify, limit or terminate the advancement of expenses, exculpation and indemnification provisions of the agreements listed on Section 6.9(d) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation’s Constituent Documents.
(e) The provisions of this Section 5.4 shall not 6.9 and the proviso to Section 1.4 are intended to be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without for the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries benefit of, and entitled to shall be enforceable by, each of the rights of third-party beneficiaries under, this Section 5.4)Indemnified Parties. The rights of each the Indemnified Party hereunder Parties under this Section 6.9 shall be in addition to any other rights such Indemnified Party Parties may have under the charter Constituent Documents of the Company or bylaws any of XETAthe Company Subsidiaries, or under Oklahoma Law any applicable contracts, insurance policies or otherwiseLaws.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, 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 affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective TimeTime and until the fourth anniversary of the Effective Time and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated, the Surviving Corporation shallshall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the fullest extent permitted under Applicable Lawdate hereof or who becomes prior to the Effective Time, indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent a director or officer of XETA and each the Company or any of its subsidiaries Subsidiaries (collectively, the “"Indemnified Parties”") against (i) all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiriescosts and expenses (including reasonable attorneys' fees), liabilities liabilities, judgments and settlement amounts that are paid or incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based on, for or arises out of, the fact that such Indemnified Party is or was a period director or officer or agent of six years after the Company or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Effective TimeTime ("Indemnified Liabilities"), and (ii) all Indemnified Liabilities based on, or arising out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest extent a corporation is permitted under Applicable Law applicable law to indemnify its own directors or officers, as the case may be; provided that the Surviving Corporation shall not be liable for any settlement of any claim effected without its written consent. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (and shall whether arising prior to or after the Effective Time), (w) the Surviving Corporation will pay any expenses in advance of the final disposition of any such action claim, action, suit, proceeding or proceeding investigation to each Indemnified Party to the fullest full extent permitted under Applicable Law, upon receipt from by applicable law; provided that the Indemnified Party person to whom expenses are advanced of an provides any undertaking required by applicable law to repay such advances advance if it is ultimately determined that such person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Surviving Corporation; (y) the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to the final sentence of this paragraph) promptly as required statements therefor are received; and (z) the Surviving Corporation shall use all commercially reasonable efforts to assist in the defense of any such matter. Any Indemnified Party wishing to claim indemnification under Applicable Law). In the event this Section, upon learning of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by notify the Surviving Corporation promptly after statements therefor are received and (ii) Corporation, but the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that failure so to notify the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that relieve the Surviving Corporation shall not be obligated pursuant from any liability which it may have under this paragraph except to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all extent such failure materially prejudices the Surviving Corporation. The Indemnified Parties in any single action as a group may retain only one law firm to represent them with respect to each such matter unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, Parties in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by case, the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) retain more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amountone law firm.
(d) In the event the Surviving Corporation 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 all or 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 Corporation shall assume the obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws From the Closing Date through the sixth anniversary of the Surviving Corporation Closing Date, Parent and the organizational documents Surviving Company shall indemnify any present or former director, manager or officer of each Parent or the Company, or their respective Subsidiaries (the “Indemnified Parties”) against all claims, losses, Liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Legal Action arising out of its subsidiaries shall contain provisions no less favorable or pertaining to the persons covered thereby with respect fact that the Indemnified Party is or was a director, manager or officer of Parent, the Company or their respective Subsidiaries, whether asserted or claimed prior to, at or at or after the Effective Time, in each case, to exculpation, indemnification and the fullest extent permitted under applicable Law. Each Indemnified Party will be entitled to advancement of expenses than Costs incurred in the defense of any such Legal Action from Parent upon receipt by Parent from the Indemnified Party of a request therefor; provided that any such Person to whom Costs are advanced provides an undertaking to Parent, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. Parent shall cooperate with the Indemnified Party in the defense of any such Legal Action and Parent shall not settle, compromise or consent to the entry of any judgment in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party under this Section 5.08), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action or such Indemnified Party otherwise consents in writing.
(b) The provisions presently set forth in the certificate of incorporation and bylaws of XETA as Parent with respect to indemnification, advancement of the date Costs and exculpation of this Agreement, which provisions present and former directors and officers of Parent shall not be amended, modified or repealed or otherwise modified for a period of six years from the Effective Time in any a manner that would adversely affect adversely the rights thereunder of individuals who who, at any time from or prior to the Effective Time, were officers or directors of Parent. The certificate of incorporation and bylaws of the Surviving Company shall contain, and Parent shall cause the certificate of incorporation and bylaws of the Surviving Company to so contain, provisions no less favorable with respect to indemnification, advancement of Costs and exculpation of present and former directors and officers as those presently set forth in the certificate of incorporation and bylaws of Parent.
(c) From and after the date Effective Time, (i) the Surviving Company shall fulfill and honor in all respects the obligations of this Agreement and the Company to and including its Indemnified Parties as of immediately prior to the Effective Time were directorspursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such Indemnified Parties, officers, employees, fiduciaries or agents with respect to claims arising out of XETA or any of its subsidiaries in respect of actions or omissions matters occurring at or prior to the Effective Time and (includingii) Parent shall fulfill and honor in all respects the obligations of Parent to its Indemnified Parties as of immediately prior to the Effective Time pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such Indemnified Parties, without limitation, with respect to claims arising out of matters occurring at or prior to the matters contemplated by this Agreement)Effective Time.
(bd) From and after the Effective Time, Parent shall maintain a directors’ and officers’ Liability insurance policies, with an effective date as of the Surviving Corporation shallClosing Date on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent. In addition, Parent shall purchase, prior to the fullest extent permitted Effective Time, following consultation with, and subject to the approval of the Company, a six-year prepaid “tail policy” for the non-cancellable extension of the directors’ and officers’ Liability coverage of Parent’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of Liability that are no less favorable than the coverage provided under Applicable LawXxxxxx’s existing policies as of the date of this Agreement with respect to any actual or alleged error, indemnifymisstatement, hold harmless and advance expenses to each present and former misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director, officer, employee, fiduciary and agent manager or officer of XETA and each Parent or any of its subsidiaries (collectively, Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the “Indemnified Parties”) against all costs and expenses Effective Time (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions).
(e) The covenants contained in this Section 5.08 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether occurring before pursuant to Law, Contract or otherwise. For the avoidance of the doubt, the Indemnified Parties and their respective heirs and legal representatives shall be third-party beneficiaries with respect to the covenants contained in this Section 5.08. From and after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation Parent shall pay all reasonable expensesCosts, including reasonable attorneys’ fees, that may be are incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.45.08, except to the extent that it is ultimately determined by a Governmental Authority with valid jurisdiction that such Indemnified Party is not entitled to be indemnified pursuant to this Agreement.
(c) From and for a period of six years after the Effective Time, the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% of current annual premiums paid by XETA for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(df) In the event that Parent, the Surviving Corporation Company 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 substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision Parent or the Surviving Company, as applicable, shall be made take all necessary action so that the successors and or assigns of Parent or the Surviving Corporation Company, as the case may be, shall assume succeed to the obligations set forth in this Section 5.45.08.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate For a period of incorporation and bylaws of five years from the Effective Time, the Surviving Corporation Charter and the organizational documents of each of its subsidiaries Surviving Corporation Bylaws shall contain provisions no less favorable for the indemnification to the persons covered thereby with respect full extent permitted by Law of individuals who, at or prior to exculpationthe Effective Time, indemnification and advancement were directors, officers, fiduciaries or agents of expenses than are set forth in the certificate REIT II or any of incorporation and bylaws of XETA as of the date of this Agreementits Subsidiaries, which provisions shall not be amended, repealed or otherwise modified for a period of six five years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from those individuals, unless such modification shall be required by Law and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior then only to the Effective Time (including, without limitation, the matters contemplated minimum extent required by this Agreement)Law.
(b) From and after After the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable Law or any applicable contract or agreement in effect on the date hereof and made available to the Surviving Corporation, indemnifyindemnify and hold harmless, hold harmless and advance provide advancement of expenses to to, each present and former director, officer, employee, fiduciary director and agent officer of XETA REIT II and each of its subsidiaries Subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, penalties, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission omission, or alleged act or omission, in their capacity as a an officer or director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six five years after the Effective Time, in each case to date hereof. In the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition event of any such action claim, action, suit, proceeding or proceeding to each investigation, any Indemnified Party wishing to claim indemnification hereunder shall promptly notify the Surviving Corporation and SSTI upon learning of same; provided that the failure to so notify shall not relieve the Surviving Corporation of any liability it may have hereunder except to the fullest extent permitted under Applicable Law, upon receipt from such failure materially prejudices the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Surviving Corporation Corporation, promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that neither REIT II nor the Surviving Corporation shall not be obligated pursuant to this subsection (bSection 6.04(b) to pay the fees and expenses of more than one counsel (plus appropriate in addition to local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any extent that two or more Indemnified Parties, in which case of such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at shall have conflicting interests in the expense outcome of the Surviving Corporationsuch action; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-two year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the The Surviving Corporation shall maintain in effect for five years from the Effective Time, if available, the current directors’ and officers’ liability insurance policies maintained by XETA (provided, REIT II provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective TimeTime containing terms and conditions that are not in the aggregate less favorable; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c6.04(c) more than an amount per year equal to 300100% of current annual premiums premiums, and normal increases paid on renewal, paid by XETA REIT II for such insurance andinsurance; provided, however, that in the event the cost of an expiration, termination or cancellation of such coverage shall exceed that amountcurrent policies, Purchaser or the Surviving Corporation shall purchase use their reasonable best efforts to obtain as much coverage as is possible under substantially similar policies for such amountmaximum annual amount in aggregate annual premiums.
(d) In the event the Surviving Corporation 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 all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision SSTI shall, and shall be made so that the successors and assigns of cause the Surviving Corporation shall assume or its successors or assigns, to maintain the policies and honor the obligations set forth provided for in this Section 5.46.04.
(e) In the event that SSTI shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent all of the obligations of the Surviving CorporationCorporation under this Section 6.04. The provisions of this Section 6.04 are intended for the benefit of and shall be enforceable by, each of the Indemnified Parties and their respective heirs and representatives.
(f) The Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree that the obligations of Parent and the Surviving Corporation under this Section 5.4 6.04 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without survive the consent effectiveness of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseMerger.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate For a period of incorporation and bylaws of five years from the Effective Time, the Surviving Corporation Charter and the organizational documents of each of its subsidiaries Surviving Corporation Bylaws shall contain provisions no less favorable for the indemnification to the persons covered thereby with respect full extent permitted by Law of individuals who, at or prior to exculpationthe Effective Time, indemnification and advancement were directors, officers, fiduciaries or agents of expenses than are set forth in the certificate REIT I or any of incorporation and bylaws of XETA as of the date of this Agreementits Subsidiaries, which provisions shall not be amended, repealed or otherwise modified for a period of six five years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from those individuals, unless such modification shall be required by Law and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior then only to the Effective Time (including, without limitation, the matters contemplated minimum extent required by this Agreement)Law.
(b) From and after After the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under Applicable Lawapplicable Law or any applicable contract or agreement in effect on the date hereof and made available to the Surviving Corporation, indemnifyindemnify and hold harmless, hold harmless and advance provide advancement of expenses to to, each present and former director, officer, employee, fiduciary director and agent officer of XETA REIT I and each of its subsidiaries Subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, penalties, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission omission, or alleged act or omission, in their capacity as a an officer or director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six five years after the Effective Time, in each case to date hereof. In the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition event of any such action claim, action, suit, proceeding or proceeding to each investigation, any Indemnified Party wishing to claim indemnification hereunder shall promptly notify the Surviving Corporation and SSTI upon learning of same; provided that the failure to so notify shall not relieve the Surviving Corporation of any liability it may have hereunder except to the fullest extent permitted under Applicable Law, upon receipt from such failure materially prejudices the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law)Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be paid by reasonably satisfactory to the Surviving Corporation Corporation, promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts cooperate in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that neither REIT I nor the Surviving Corporation shall not be obligated pursuant to this subsection (bSection 6.04(b) to pay the fees and expenses of more than one counsel (plus appropriate in addition to local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel except to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any extent that two or more Indemnified Parties, in which case of such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at shall have conflicting interests in the expense outcome of the Surviving Corporationsuch action; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-five year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for a period of six years after the Effective Time, the The Surviving Corporation shall maintain in effect for five years from the Effective Time, if available, the current directors’ and officers’ liability insurance policies maintained by XETA (provided, REIT I provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective TimeTime containing terms and conditions that are not in the aggregate less favorable; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.4(c6.04(c) more than an amount per year equal to 300100% of current annual premiums premiums, and normal increases paid on renewal, paid by XETA REIT I for such insurance andinsurance; provided, however, that in the event the cost of an expiration, termination or cancellation of such coverage shall exceed that amountcurrent policies, Purchaser or the Surviving Corporation shall purchase use their reasonable best efforts to obtain as much coverage as is possible under substantially similar policies for such amountmaximum annual amount in aggregate annual premiums.
(d) In the event the Surviving Corporation 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 all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision SSTI shall, and shall be made so that the successors and assigns of cause the Surviving Corporation shall assume or its successors or assigns, to maintain the policies and honor the obligations set forth provided for in this Section 5.46.04.
(e) In the event that SSTI shall cause the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent all of the obligations of the Surviving CorporationCorporation under this Section 6.04. The provisions of this Section 6.04 are intended for the benefit of and shall be enforceable by, each of the Indemnified Parties and their respective heirs and representatives.
(f) The Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree that the obligations of Parent and the Surviving Corporation under this Section 5.4 6.04 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without survive the consent effectiveness of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwiseMerger.
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Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws By-Laws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable regarding directors' and officers' indemnification and insurance reasonably satisfactory to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, Company 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 affect adversely the rights thereunder of individuals who at or at any time from and after the date of this Agreement and prior to and including the Effective Time were directors, officers, employees, fiduciaries or agents of XETA or any of its subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement)Company.
(b) From Prior to the Effective Time, the Company shall, to the fullest extent permitted under applicable Law and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under Applicable applicable Law, indemnifyindemnify and hold harmless, hold harmless and advance expenses to each present and former director or officer of the Company and each Company Subsidiary and each such person who served at the request of the Company or any Company Subsidiary as a director, officer, employeetrustee, fiduciary and partner, fiduciary, employee or agent of XETA and each of its subsidiaries another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") against all costs and expenses (including reasonable attorneys’ ' fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity capacities as a director, officer, employee, fiduciary officers or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Timedirectors, in each case to occurring before the fullest extent permitted under Applicable Law Effective Time (and shall pay any expenses in advance of including the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Lawtransactions contemplated by this Agreement). In Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties Company or Parent and the Surviving Corporation, as the case may retain counsel (including local counsel) satisfactory to thembe, shall pay the reasonable fees and expenses of counsel selected by any Indemnified Party, which counsel shall be paid by reasonably satisfactory to the Company or to Parent and the Surviving Corporation Corporation, as the case may be, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and (ii) the Company and Parent and the Surviving Corporation shall use reasonable best efforts cooperate in the vigorous defense of any such matter; provided, howeverPROVIDED, HOWEVER, that none of the Company, Parent or the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) From and for For a period of six years after the Effective Time, the Surviving Corporation Parent shall maintain cause to be maintained in effect the current directors’ ' and officers’ ' liability insurance policies maintained by XETA the Company (provided, provided that the Surviving Corporation Parent may substitute therefor policies reasonably satisfactory to the Indemnified Parties of at least the same coverage and amounts containing terms and conditions that which are no less advantageous to such officers and directors, so long as such substitution does not result in gaps or lapses in coverageadvantageous) with respect to matters occurring claims arising from facts or events that occurred prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall the Surviving Corporation Parent be required to expend pursuant to this Section 5.4(c6.05(c) more than an amount per year equal to 300250% of current annual premiums paid by XETA the Company for such insurance and, (which premiums the Company represents and warrants to be approximately $440,000 per year in the event aggregate), and if the cost annual premium for such insurance at any time during such period shall exceed 250% of such coverage rate, Parent shall exceed that amount, the Surviving Corporation shall purchase as much provide such coverage as possible for shall then be available at an annual premium equal to 250% of such amountrate.
(d) This Section 6.05 is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties, their heirs and personal representatives and shall be binding on the Surviving Corporation and its respective successors and assigns. In the event Parent, the Company or the Surviving 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 corporation or entity of in such consolidation or merger or (ii) transfers all or 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 Parent, the Company or the Surviving Corporation shall assume Corporation, as the case may be, honor the indemnification obligations set forth in this Section 5.4.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4)6.05. The rights of each of the Indemnified Party hereunder Parties under this Section 6.05 shall be in addition to any other rights such Indemnified Party person may have under the charter Certificate of Incorporation or bylaws By-Laws of XETAthe Company or any of its Subsidiaries, or under Oklahoma Delaware Law or otherwiseany other applicable laws or under any agreement of any Indemnified Party with the Company or any of its Subsidiaries.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation and bylaws of the Surviving Corporation and the organizational documents of each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification and advancement of expenses than are set forth in the certificate of incorporation and bylaws of XETA as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of For six years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals Time, Seagull shall indemnify, defend and hold harmless each person who is now, or has been at any time from and after prior to the date of this Agreement and hereof or who becomes prior to and including the Effective Time were directorsTime, officers, employees, fiduciaries an officer or agents director of XETA OEI and its Subsidiaries or an employee of OEI or any of its subsidiaries Subsidiaries who acts as a fiduciary under any of the OEI Benefit Plans (each an "Indemnified Party") against all losses, claims, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and judgments, fines, losses, claims, liabilities and amounts paid in respect settlement (provided that any such settlement is effected with the prior written consent of Seagull, which will not be unreasonably withheld)) arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement).
(b) From and after the Effective Time, the Surviving Corporation shall, to the fullest full extent permitted under Applicable LawTexas law or Seagull's articles of incorporation and bylaws and OEI's written indemnification agreements in effect at the date hereof, indemnify, hold harmless and advance including provisions therein relating to the advancement of expenses to each present and former director, officer, employee, fiduciary and agent incurred in the defense of XETA and each of its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as a director, officer, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances as required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of which shall be paid by the Surviving Corporation promptly after statements therefor are received and (ii) the Surviving Corporation shall use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation; and provided, further, that, in the event that any claim for indemnification is or claims are asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims; and provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the final disposition standards set forth under Texas law, Seagull's articles of incorporation or bylaws or such agreements, as the case may be, shall be made by independent 48 counsel mutually acceptable to Seagull and the Indemnified Party; and provided, further, that nothing herein shall impair any rights or obligations of any Indemnified Party. In the event that any claim or claims are brought against any Indemnified Party (whether arising before or after the Effective Time), such Indemnified Party may select counsel for the defense of such claim. The Surviving Corporation , which counsel shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing reasonably acceptable to OEI (if selected prior to the indemnity Effective Time) and other obligations provided in this Section 5.4Seagull (if selected after the Effective Time).
(cb) From Seagull shall maintain OEI's existing officers' and directors' liability insurance policy ("D&O Insurance") for a period of not less than six years after the Effective Time, but only to the Surviving Corporation shall maintain in effect the current directors’ and officers’ liability insurance policies maintained by XETA (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous extent related to such officers and directors, so long as such substitution does not result in gaps actions or lapses in coverage) with respect to matters occurring omissions prior to the Effective Time; provided, howeverthat Seagull may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; provided further, that in no event shall the Surviving Corporation aggregate amount of premiums to be required paid with respect to expend pursuant to this Section 5.4(c) more than an amount per year equal to 300% the maintenance of current annual premiums paid by XETA such D&O Insurance for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Corporation shall purchase as much coverage as possible for such amount.
(d) In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and six year period shall not be exceed $2,500,000. Additionally, Seagull shall maintain the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personUMC D&O Policy as currently in effect until March 27, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 5.42003.
(e) In the event that the Surviving Corporation should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Corporation may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of XETA and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Surviving Corporation.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 5.4 applies shall be third-party beneficiaries of, and entitled to the rights of third-party beneficiaries under, this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of XETA, under Oklahoma Law or otherwise.
Appears in 1 contract
