Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Oak Hill Capital Partners L P), Agreement and Plan of Merger (Meristar Hotels & Resorts Inc), Agreement and Plan of Merger (American Skiing Co /Me)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries For six (the "Indemnified Parties"6) as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in , Parent shall cause the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall to indemnify all Indemnified Parties and hold harmless, to the fullest extent that the Surviving Corporation is permitted by to indemnify under applicable law Law, each person who is now or was prior to the Effective Time an officer or director of the Company or the Company Subsidiaries and each person who is now or was prior to the Effective Time an officer or director of the Company or the Company Subsidiaries who served as a fiduciary under or with respect to all acts any employee benefit plan of the Company or the Company Subsidiaries (within the meaning of Section 3(3) of ERISA) (each, an “Indemnified Person”) against any costs or expenses, judgments, fines, losses, claims, damages, liabilities and omissions amounts paid in settlement in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation in respect of, or arising out of such individuals' services as officersof, directors, employees acts or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employeesomissions occurring, or otherwise on behalf ofalleged to have occurred, MeriStar at or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including based in whole or in part on, or arising in whole or in part out of, the transactions contemplated by this Agreement. Without limiting the generality fact that such person is or was an officer or director of the foregoingCompany and the Company Subsidiaries, or a fiduciary under or with respect to any employee benefit plan of the Company or the Company Subsidiaries; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for indemnification under this Section 6.5(a) then the claim asserted in such notice shall survive the event sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, for six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to advance, to the extent that the Surviving Corporation is permitted to advance under applicable Law, prior to the final disposition of any such Indemnified Party is actual or becomes involved in any capacity in any threatened claim, action, suit, arbitration, proceeding or investigation for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any mattersuch claim, including action, suit, arbitration, proceeding or investigation; provided, however, that any advancement of expenses pursuant to this Section 6.5(a) shall be conditioned upon the transactions contemplated Surviving Corporation’s receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be ultimately determined by final judgment of a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified pursuant to this AgreementSection 6.5(a). In the event of any such action, occurring at or after, the Effective Time, Parent and the Surviving Corporation shall pay as incurred such cooperate with the Indemnified Party's legal and other expenses (including Person in the cost defense of any investigation and preparation) incurred in connection therewithsuch action.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Intel Corp), Agreement and Plan of Merger (McAfee, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Parent agrees that all rights to indemnification now indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favor of each present and former director, officer or employee of the Company or any of its Subsidiaries provided for in their respective Organizational Documents or in any agreement to which the Company or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the Merger Transactions and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organizational Documents of the Company and its Subsidiaries or in any agreement to which the Company or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of the Company or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided provided, however, that in the event any claim claim, action, suit, proceeding or claims are investigation is pending, asserted or made either prior to the Effective Time or within such six-six (6) year period, all rights to indemnification indemnification, advancement of expenses or exculpation required to be continued pursuant to this Section 6.8(a) in respect of any such claim or claims thereof shall continue until final disposition of any thereof. From and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to after the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoingParent shall assume, in the event any such Indemnified Party is or becomes involved in any capacity in any actionbe jointly and severally liable for, proceeding or investigation in connection with any matterand honor and guaranty, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, and shall cause the Surviving Corporation shall pay and its Subsidiaries to honor, in accordance with their respective terms, each of the covenants contained in this Section 6.8 without limit as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithto time.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Chiquita Brands International Inc), Agreement and Plan of Merger (Chiquita Brands International Inc), Agreement and Plan of Merger (Cavendish Acquisition Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoingany additional rights that any Person may have under any agreement or Company Plan, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, from and after the Effective Time, the Surviving Corporation shall pay indemnify and hold harmless each present (as incurred such of the Effective Time) and former officer and director of the Company and its Subsidiaries (the “Indemnified Party's legal Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and other expenses reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements (including the cost of any investigation and preparation) collectively, “Costs”), incurred in connection therewithwith any Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or its Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company’s Articles of Incorporation or Bylaws as at the date hereof. In the event of any such Proceeding, each Indemnified Party will be entitled to advancement of expenses incurred in the defense of the Proceeding from Parent or the Surviving Corporation within ten Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor to the extent as would be required under the Company’s Articles of Incorporation or Bylaws as at the date hereof and is permitted by the FBCA; 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; provided further that neither Parent nor the Surviving Corporation shall be required to indemnify or advance expenses to any Indemnified Party in connection with a Proceeding (or part thereof) initiated by such Indemnified Party unless such Proceeding (or part thereof) was or is authorized by the Board of Directors of Parent or the Surviving Corporation.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Jaharis Mary), Agreement and Plan of Merger (Abbott Laboratories), Agreement and Plan of Merger (Kos Pharmaceuticals Inc)
Directors’ and Officers’ Indemnification and Insurance. (a1) ASC agrees From and after the Effective Time, Shell will, or will cause the Surviving Corporation to, (i) fulfill and honor in all respects the obligations to indemnify and hold harmless the Shell’s, the Surviving Corporation’s, Company’s and each of their Subsidiaries’ present and former directors, officers and employees and their heirs, executors and assigns (each an “Indemnified Party,” and collectively, the “Indemnified Personnel”), to the same extent that all rights such individuals are entitled to indemnification now as of the date of this Agreement pursuant to applicable law, articles of incorporation, bylaws and indemnification or other agreements, if any, in existence on the date hereof with, or for the benefit of, any such Indemnified Party arising out of or pertaining to matters existing or occurring at or prior to the Effective Time and for acts or omissions existing or occurring at or prior to the Effective Time (including for acts or omissions occurring in favor connection with the approval of any employee, agent, director or officer of MeriStar this Agreement and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one consummation of the MeriStar Subsidiariestransactions contemplated hereby), whether or otherwise not asserted or claimed prior thereto, and (ii) include and caused to be maintained in effect in the Surviving Corporation’s (or any successor’s) certificate of incorporation and bylaws for a period of five years after the Effective Time, subject to any limitation imposed from time to time under applicable law, provisions regarding elimination of liability of directors, indemnification of officers, directors and employees, and advancement of expenses, that are at least as favorable to the Indemnified Personnel as those set forth in the current articles of incorporation and bylaws of the Company in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithhereof.
Appears in 3 contracts
Samples: Merger Agreement (National Quality Care Inc), Merger Agreement (Xcorporeal, Inc.), Merger Agreement (Xcorporeal, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Without limiting any additional rights that all rights to indemnification now existing in favor of any employee, agentofficer or director may have under any employment agreement or Benefit Plan or under the Company’s certificate of incorporation or bylaws, after the Effective Time, the Buyer shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer or director or officer of MeriStar the Company and the MeriStar its Subsidiaries (the "“Indemnified Parties") as provided Directors and Officers”), against all Actions, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including, attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of actions taken by them in their respective charters capacity as officers or by-lawsdirectors at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), in an agreement between an Indemnified Party and MeriStar or one taken by them at the request of the MeriStar Company or any of its Subsidiaries, whether asserted or otherwise in effect on claimed prior to, at or after the date of this Agreement shall survive Effective Time, to the Merger and shall continue in full force and effect fullest extent permitted under applicable Law for a period of not less than six years after from the Effective Time. Each Indemnified Director and Officer will be entitled to advancement of expenses incurred in the defense of any Action from the Surviving Corporation within ten Business Days of receipt by the Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided that in any Person to whom expenses are advanced provides an undertaking, if and only to the event any claim or claims are asserted or made within extent required by the NJBCA, to repay such six-year period, all rights advances if it is ultimately determined that such person is not entitled to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claimsindemnification. The Surviving Corporation shall indemnify all Indemnified Parties not settle, compromise or consent to the fullest extent permitted entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by applicable law with respect to such Indemnified Director or Officer hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Director or Officer from all acts and omissions liability arising out of such individuals' services as officers, directors, employees Action or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is Director or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithOfficer otherwise consents.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Mikron Infrared Inc), Agreement and Plan of Merger (LumaSense Technologies, Inc.), Agreement and Plan of Merger (Mikron Infrared Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Buyer and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers or employees, director as the case may be, of the Company or officer of MeriStar and the MeriStar Subsidiaries its subsidiaries (the "Indemnified Parties"other than CPEX) as provided in their respective charters articles of association, certificates of incorporation or by-laws, in an agreement between an Indemnified Party and MeriStar bylaws (or one of the MeriStar Subsidiaries, comparable organization documents) or otherwise in effect on the date of this Agreement agreements shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claimseffect. The Surviving Corporation shall indemnify all Indemnified Parties (and Buyer shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to the fullest extent permitted by applicable law Indemnitees with respect to all acts and or omissions arising out of by them in their capacities as such individuals' services as officers, directors, employees or agents of MeriStar or at any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring time prior to the Effective Time, including to the transactions contemplated by fullest extent required by: (i) the Company Certificate or Company By-Laws and the organizational documents of the Company’s subsidiaries (other than CPEX), each as in effect on the date of this Agreement. Without limiting the generality ; and (ii) any indemnification agreements of the foregoing, Company or its subsidiaries (other than CPEX) as in effect on the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by date of this Agreement, occurring at or aftercopies of which have been made available to Buyer. For the avoidance of doubt, nothing in this Section 6.7(a) shall affect the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights of any investigation employee of CPEX existing pursuant to (i) the Company Certificate or Company By-Laws and preparationthe organizational documents of the Company’s subsidiaries (other than CPEX), each as in effect on the date of this Agreement; and (ii) incurred any indemnification agreements of the Company or its subsidiaries (other than CPEX) as in connection therewitheffect on the date of this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Bentley Pharmaceuticals Inc), Agreement and Plan of Merger (Teva Pharmaceutical Industries LTD), Agreement and Plan of Merger (Teva Pharmaceutical Industries LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Purchaser agree that all any rights to indemnification or exculpation now existing in favor of, and all limitations on the personal liability of any each present and former director, officer, employee, agent, director fiduciary or officer agent of MeriStar Seller and the MeriStar its Subsidiaries (the "“Indemnified Parties"” and, each, an “Indemnified Party”) as provided for in their the respective charters organizational documents and any indemnification agreement between Seller or by-lawsany Subsidiary of Seller and any present or former director, officer, employee, fiduciary or agent of Seller of any of its Subsidiaries, in an agreement between an Indemnified Party and MeriStar or one effect as of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and hereof shall continue in full force and effect (and with respect to Seller, shall be reflected in the applicable organizational documents of such entity), for a period of not less than six (6) years after the Effective TimeAcceptance Date. During such period, Parent shall not, nor shall it permit the Surviving Corporation to, amend, repeal or otherwise modify such provisions or agreements for indemnification in any manner that would materially and adversely affect the rights thereunder of any individual who at any time on or prior to the Acceptance Date was a director, officer, employee, fiduciary or agent of Seller or its Subsidiaries in respect of actions or omissions occurring at or prior to the Acceptance Date (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by Law; provided provided, however, that in the event any claim or claims are asserted or made either prior to the Acceptance Date or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Kenexa Corp), Agreement and Plan of Merger (Kenexa Corp), Agreement and Plan of Merger (Kenexa Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that For a period beginning at the Effective Time and ending no earlier than seven years after the Effective Time, the Surviving Company and Parent shall indemnify and hold harmless all rights past and present directors and officers of the Company and its Subsidiaries (collectively, the “Covered Persons”) to indemnification now existing in favor the same extent such Persons are indemnified as of any employeethe date of this Agreement by the Company pursuant to Applicable Law, agentthe Charter Documents of the Company or its Subsidiaries, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-lawsindemnification agreements, if any, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect existence on the date of this Agreement and set forth in Section 3.10(a)(xiv) of the Company Disclosure Letter, and, solely in the case of the Surviving Company (and not Parent), any other indemnification agreements, if any, in existence on the date of this Agreement (collectively, and including the indemnification agreements set forth in Section 3.10(a)(xiv) of the Company Disclosure Letter, the “Existing Indemnification Agreements”) arising out of acts or omissions in their capacity as directors or officers of the Company or any of its Subsidiaries occurring at or prior to the Effective Time (including in connection with the adoption and approval of this Agreement and the consummation of the transactions contemplated hereby). The Surviving Company and Parent shall survive advance expenses (including reasonable legal fees and expenses) incurred in the Merger defense of any Legal Proceeding with respect to the matters subject to indemnification pursuant to this Section 6.16 in accordance with the procedures (if any) set forth in the Charter Documents of the Company or any of its Subsidiaries, any Existing Indemnification Agreements and any other requirements under Applicable Law; provided, that Parent shall continue only be required to advance any such expenses to the extent that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined in full force and effect a final, non-appealable judgment by a court of competent jurisdiction that such Person is not entitled to indemnification (for a period the avoidance of doubt, the foregoing proviso shall not less than six years apply with respect to the Surviving Company’s obligation to advance expenses pursuant to this Section 6.16(a)). Notwithstanding anything herein to the contrary, if any Legal Proceeding (whether arising before, at or after the Effective Time; provided that in the event any claim or claims are asserted or ) is made within against such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law persons with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees matters subject to indemnification hereunder on or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality seventh anniversary of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the provisions of this Section 6.16(a) shall continue in effect until the final disposition or final resolution of such Legal Proceeding. Notwithstanding anything contained in this Section 6.16(a) or otherwise, Parent and the Surviving Corporation Company (i) shall pay as incurred not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), and (ii) shall not have any obligation hereunder to any Covered Person if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Party's legal and other indemnification is prohibited by Applicable Law, in which case the Covered Person shall promptly refund to Parent or the Surviving Company the amount of all such expenses (including the cost of any investigation and preparation) incurred in connection therewiththeretofore advanced pursuant hereto.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Gilat Satellite Networks LTD), Agreement and Plan of Merger (Comtech Telecommunications Corp /De/), Agreement and Plan of Merger (Gilat Satellite Networks LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification now for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the Transactions), existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favor of the current or former directors or officers, as the case may be, of the Company as provided in the Company’s or each of the Company’s subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) currently in effect as of the date of this Agreement, shall survive the Merger and shall continue in full force and effect for effect. For a period of not less than six (6) years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, from the Effective Time, the Surviving Corporation shall pay (and Parent shall cause the Surviving Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to all acts or omissions by them in their capacities as incurred such Indemnified Party's legal at any time prior to the Effective Time, to the fullest extent required by the Amended and other expenses Restated Certificate of Incorporation or Amended and Restated Bylaws (including or equivalent organizational or governing documents) of the cost Company or any of its subsidiaries as in effect on the date of this Agreement, and (ii) not amend, repeal or otherwise modify any such provisions referenced in subsections (i) above in any manner that would adversely affect the rights thereunder of any investigation and preparation) incurred in connection therewithIndemnitees with respect to any acts or omissions occurring on or prior to the Effective Time.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Norcraft Companies, Inc.), Agreement and Plan of Merger (Fortune Brands Home & Security, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to indemnification exculpation, indemnification, contribution and advancement of expenses for facts, events, acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of the current or former directors, officers or employees of (or in a comparable role with) the Company or its Subsidiaries, or any employeeperson serving at the request of the Company or any of its Subsidiaries as a director, agent, director officer or officer employee of MeriStar and the MeriStar Subsidiaries (or in a comparable role with) another Person (the "“D&O Indemnified Parties") ”), as the case may be, in each case, as provided in their the respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one organizational documents of the MeriStar Subsidiaries, Company or otherwise in effect on its Subsidiaries or any indemnification or similar agreements as of the date of this Agreement Agreement, shall survive the acceptance of Shares for payment pursuant to the Offer and the Merger and shall continue in full force and effect in accordance with their terms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall and shall cause the Surviving Corporation and its Subsidiaries to perform such obligations thereunder. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee (or comparable) liability that are no less favorable to the D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the date of this Agreement, which provisions thereafter shall not, for a period of not less than at least six (6) years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to from the Effective Time, including be amended, repealed or otherwise modified in any manner that would adversely affect the transactions contemplated by this Agreement. Without limiting the generality rights thereunder of the foregoing, in the event any such D&O Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated Parties except as required by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithapplicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Home Point Capital Inc.), Agreement and Plan of Merger (Mr. Cooper Group Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification (and all rights to advancement of expenses relating thereto) for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement, including the Merger), now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") Indemnitees as provided in their respective charters the Charter or by-laws, in an agreement between an Indemnified Party and MeriStar Bylaws (or one such equivalent organizational or governing documents of any of the MeriStar Subsidiaries, or otherwise Company’s Subsidiaries as in effect on the date of this Agreement Agreement) or in any Contract between such Indemnitee and the Company or any of its Subsidiaries (in each case as in effect on the date of this Agreement) shall survive the Merger and shall continue in full force and effect for a period of not less than six years effect. From and after the Effective Time; provided that in , Parent and the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to (x) all Indemnified Parties acts or omissions by them in their capacities as such at any time at or prior to the Effective Time or (y) any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to the Merger, this Agreement and any transactions contemplated hereby, in either case, to the fullest extent permitted by (i) the Charter or Bylaws (or such equivalent organizational or governing documents of any of the Company’s Subsidiaries as in effect on the date of this Agreement), (ii) any indemnification agreement of the Company or its Subsidiaries or other applicable law Contract as in effect on the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnitees or (iii) applicable Law. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to all acts indemnification, advancement of expenses and omissions arising out limitation of such individuals' services director, officer and employee liability that are no less favorable to the Indemnitees than those set forth in the Charter and Bylaws and the Company’s Subsidiaries’ organizational documents as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries date of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at which provisions thereafter shall not be amended, repealed or after, otherwise modified in any manner that would adversely affect the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights thereunder of any investigation and preparation) incurred in connection therewithIndemnitees.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bally Technologies, Inc.), Agreement and Plan of Merger (SHFL Entertainment Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar From and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in , AremisSoft shall, and shall cause the event any claim Surviving Company to, jointly and severally, indemnify, defend and hold harmless the present and former officers and directors of Fourth Shift and persons who become officers or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring directors prior to the Effective TimeTime (collectively, the "Indemnitees") against all losses, expenses, (including reasonable attorney's fees) claims, damages, liabilities, costs or judgments or amounts that are paid in settlement with the approval of AremisSoft (which approval shall not be unreasonably withheld) arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement. Without limiting ) to the generality full extent permitted or required as of the foregoingdate hereof by Fourth Shift's articles of incorporation and bylaws (and shall also advance expenses as incurred to the fullest extent permitted under the Fourth Shift's articles of incorporation and bylaws, provided that the person to whom expenses are advanced provides the undertaking to repay such advances if and as contemplated by applicable law or such articles of incorporation and bylaws). The Surviving Company shall have in place extended reporting endorsements (tail coverage) on the fiduciary liability, professional liability, and directors and officers liability policies currently covering Fourth Shift or any of the Indemnitees required to be indemnified by AremisSoft, for a period of three (3) years commencing as of the Effective Time. In connection with such efforts, the Surviving Company will complete accurately in all material respects any insurance applications and forms of the applicable insurer and take any reasonable steps to preserve any claims, including submitting a full and complete list of any potential claims of which the Surviving Company has knowledge, under the policy issued by such insurer. AremisSoft may substitute new directors and officers liability insurance policies from reputable insurance companies the material terms of which, including coverage and amount, are no less favorable in any material respect to the Indemnitees than the insurance coverage otherwise required by this Section (l). Such extended reporting endorsements shall be obtained by Fourth Shift prior to the Closing with premiums in an aggregate amount not to exceed $225,000. Notwithstanding any provisions of this Section (l), failure by the Surviving Company and/or AremisSoft, to have in place such extended reporting endorsements or to provide such similar coverage under AremisSoft's policies shall not in any way affect, lessen or excuse AremisSoft from its obligation to indemnify, defend and hold harmless the Indemnitees to the extent required by this Section (l). In the event any such Indemnified Party is or becomes involved in any capacity in any claim, action, suit, proceeding or investigation in connection with any matter, including the transactions contemplated by (a "D&O Claim") for which indemnification is provided under this Agreement, occurring at Section (l) is brought against an Indemnitee (whether arising before or after, after the Effective Time) after the Effective Time (i) such Indemnitee may retain counsel satisfactory to it (subject to approval by the indemnifying party, which approval shall not be unreasonably withheld, and subject to the terms and conditions of the applicable directors and officers liability insurance or fiduciary liability insurance policies), (ii) the indemnifying party shall pay all reasonable fees and expenses of such counsel for such Indemnitee promptly as statements therefor are received (subject to the ability of the indemnifying party to receive such information relative to the legal services provided as is customarily provided and reasonably requested by the indemnifying party and provided that nothing in this Section (l) shall prevent the indemnifying party from disputing any fees it reasonably believes are not reasonable), and (iii) the indemnifying party will use all reasonable efforts to assist in the vigorous defense of any such matter, provided that the indemnifying party shall not be liable for any settlement of any D&O Claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnitee wishing to claim indemnification under this Section (l), upon learning of any such D&O Claim, shall notify the appropriate indemnifying party (but the failure so to notify such indemnifying party shall not relieve the indemnifying party from any liability which it may have under this Section (l) except to the extent such failure materially prejudices such indemnifying party), and shall deliver to such indemnifying party the undertaking contemplated by applicable law. The Indemnitees as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnitees. This Subsection (l) is intended to benefit the Indemnitees, shall be enforceable by each Indemnitee and his or her heirs and representatives, and shall be binding on all successors and assigns of the Surviving Corporation shall pay as incurred such Indemnified Party's legal Company and other expenses (including the cost of any investigation and preparation) incurred in connection therewithAremisSoft.
Appears in 2 contracts
Samples: Merger Agreement (Fourth Shift Corp), Merger Agreement (Aremissoft Corp /De/)
Directors’ and Officers’ Indemnification and Insurance. Following the Effective Time, Parent shall (a) ASC agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers and employees of any employee, agent, director or officer of MeriStar Company and the MeriStar its Subsidiaries (in all of their capacities) (i) to the "Indemnified Parties") same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Company pursuant to Company's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the Merger date hereof with, or for the benefit of, any directors, officers and shall continue employees of Company and its Subsidiaries and (ii) without limitation to clause (i), to the fullest extent permitted by law, in full force each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (b) include and cause to be maintained in effect in the Surviving Entity's (or any successor's) certificate of incorporation and by-laws for a period of not less than six years after the Effective Time; , provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses which are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of incorporation and by-laws of Company and (c) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Company (provided that Parent (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time; provided, including the transactions contemplated by this Agreement. Without limiting the generality however, that in no event shall Parent be required to expend in any one year an amount in excess of 200% of the foregoingannual premiums currently paid by Company for such insurance; and, provided further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. The obligations of Parent under this Section 7.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.6 applies without the event any consent of such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithaffected indemnitee.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bruker Axs Inc), Agreement and Plan of Merger (Bruker Daltonics Inc)
Directors’ and Officers’ Indemnification and Insurance. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Company and its Subsidiaries (a) ASC agrees that all rights to indemnification now existing in favor the same extent such persons are indemnified or have the right to advancement of any employee, agent, director or officer expenses as of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the Company's certificate of incorporation, bylaws and shall continue indemnification agreements, if any, in full force existence on the date hereof with any directors, officers and employees of the Company and its Subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of not less than six years after the Effective Time; provided that , the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the event any claim or claims are asserted or made within such six-year period, all rights certificate of incorporation and bylaws of the Company and (iii) cause to indemnification be maintained for a period of six years after the Effective Time officers' and directors' liability insurance in respect of any such claim acts or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective TimeTime covering such persons currently covered by the Company's directors' and officers' liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoingprovided that, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by satisfying its obligation under this Agreement, occurring at or after, the Effective TimeSection 5.7, the Surviving Corporation shall not be obligated to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year. The obligations of the Surviving Corporation under this Section 5.7 shall not be terminated or modified in such a manner as incurred to adversely affect any indemnitee to whom this Section 5.7 applies without the consent of such Indemnified Party's legal affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7). Without limiting any of the obligations above, nothing in this Section 5.7 shall be construed to make Parent, Merger Sub or the Surviving Corporation a co-insurer with any third-party provider of directors' and other expenses (including the cost of any investigation and preparation) incurred in connection therewithofficers' liability insurance.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pepsico Inc), Agreement and Plan of Merger (Quaker Oats Co)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Each Party agrees that (i) all rights to indemnification or exculpation now existing in favor of any employeethe directors and officers of ARYA, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one the Governing Documents of the MeriStar Subsidiaries, ARYA or otherwise in effect as of immediately prior to the Domestication, in either case, solely with respect to any matters occurring on or prior to the date of this Agreement Closing, shall survive the Merger transactions contemplated by this Agreement and shall continue in full force and effect from and after the Closing for a period of not less than six (6) years after the Effective Time; provided that in the event any claim and (ii) ARYA will perform and discharge, or claims are asserted or made within cause to be performed and discharged, all obligations to provide such six-indemnity and exculpation during such six (6) year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to To the fullest maximum extent permitted by applicable law Law, during such six (6) year period, ARYA shall advance, or cause to be advanced, expenses in connection with such indemnification as provided in the Governing Documents of ARYA or other applicable agreements as in effect immediately prior to the Domestication. The indemnification and liability limitation or exculpation provisions of the Governing Documents of ARYA shall not, during such six (6) year period, be amended, repealed or otherwise modified following the Closing in any manner that would adversely affect the rights thereunder of individuals who, as of immediately prior to the Closing, or at any time prior to such time, were directors or officers of ARYA (the “ARYA D&O Persons”) entitled to be so indemnified, have their liability limited or be exculpated with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees any matters occurring on or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective TimeClosing and relating to the fact that such ARYA D&O Person was a director or officer of ARYA on or prior to the Closing, including the transactions contemplated unless such amendment, repeal or other modification is required by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithapplicable Law.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Amicus Therapeutics, Inc.), Limited Liability Company Agreement (ARYA Sciences Acquisition Corp IV)
Directors’ and Officers’ Indemnification and Insurance. Following ------------------------------------------------------ the Effective Time, Globespan shall (a) ASC agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers and employees of any employee, agent, director or officer of MeriStar Virata and the MeriStar its Subsidiaries (in all of their capacities) (i) to the "Indemnified Parties") same extent such individuals are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Virata pursuant to Virata's Certificate of Incorporation, By-Laws and indemnification agreements, if any, in existence on the Merger date hereof with, or for the benefit of, any directors, officers and shall continue in full force employees of Virata and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year periodits Subsidiaries and (ii) without limitation to subclause (i) above, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all law, in each case for acts and or omissions arising out of such individuals' services as officers, directors, employees occurring at or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated by this Agreement. Without limiting hereby), (b) include and cause to be maintained in effect in the generality Surviving Corporation's (or any successor's) Certificate of Incorporation and By-Laws for a period of six (6) years after the foregoingEffective Time, provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses that are, in the event any such Indemnified Party is or becomes involved aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in any capacity in any actionthe current Certificate of Incorporation and By-Laws of Virata and (c) cause to be maintained, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, for a period of six (6) years after the Effective Time, the Surviving Corporation current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Virata (provided that Globespan (or any successor thereto) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions that are, in the aggregate, no less advantageous to the insured) with respect to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that -------- ------- in no event shall pay Globespan be required to expend in any one year an amount in excess of 300% of the annual premiums paid by Virata on the date hereof for such insurance; and, provided further that if the annual premiums of such insurance -------- ------- coverage exceed such amount, Globespan shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. The obligations of Globespan under this Section 6.7 shall not be terminated or modified in such a manner as incurred to adversely affect any indemnitee to whom this Section 6.7 applies without the consent of such Indemnified Party's legal and other expenses affected indemnitee (including it being expressly agreed that the cost indemnitees to whom this Section 6.7 applies shall be third-party beneficiaries of any investigation and preparation) incurred in connection therewiththis Section 6.7).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Virata Corp), Agreement and Plan of Merger (Virata Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Holdco agrees that all rights to indemnification now indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favour of each present and former director, officer or employee of Xxxxxx or any of its Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Xxxxxx or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the Merger consummation of the Scheme and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Effective Time, Holdco shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Xxxxxx and its Subsidiaries or in any agreement to which Xxxxxx or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of Xxxxxx or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided provided, however, that in the event any claim claim, action, suit proceeding or claims are investigation is pending, asserted or made either prior to the Effective Time or within such six-six year period, all rights to indemnification indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(a) in respect of any such claim or claims thereof shall continue until final disposition of any thereof. From and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to after the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality Holdco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Xxxxxx and its Subsidiaries to honour, in accordance with their respective terms, each of the foregoing, covenants contained in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay Clause 7.3 without limit as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithto time.
Appears in 2 contracts
Samples: Transaction Agreement (Cooper Industries PLC), Agreement (Eaton Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees ------------------------------------------------------ It is understood and agreed that all rights to indemnification now existing in favor of any the Company shall defend, indemnify and hold harmless, and after the Effective Time, the Surviving Corporation and the Parent shall, jointly and severally, defend, indemnify and hold harmless, each present and former employee, agent, director or and officer of MeriStar and the MeriStar Subsidiaries Company (the "Indemnified Parties") to the fullest extent required or permitted under (a) applicable law and (b) as provided in their respective charters or and by-laws, in an agreement between an Indemnified Party which rights to be defended, indemnified and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement held harmless shall survive the Merger and shall continue in full force and effect for a period of not less than six years without time limitation from and after the Effective Time; provided that in . Without limiting the event any claim or claims are asserted or made within such six-year periodforegoing, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any the Company, and all such claims. The after the Effective Time the Surviving Corporation shall indemnify all Indemnified Parties and the Parent, will periodically advance expenses as incurred with respect to the foregoing, to the fullest extent permitted by applicable law law; provided the person to whom the expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. In addition, the Articles of Incorporation and the By-Laws of the Surviving Corporation with respect to all acts and omissions arising out indemnification, shall not be amended, repealed or otherwise modified for a period of such individuals' services as six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, directors, agents or employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, Company or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior entitled to indemnification pursuant to the Effective Time, including the transactions contemplated by this AgreementCompany's Articles of Incorporation. Without limiting the generality of the foregoing, in In the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, that the Surviving Corporation transfers all or substantially all of its operations to another corporation or other entity, proper provision shall pay as incurred such Indemnified Party's legal and other expenses (including be made so that the cost successor or transferee thereof shall assume any remaining obligations of any investigation and preparation) incurred the Surviving Corporation set forth in connection therewiththis Section 4.8.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Medarex Inc), Agreement and Plan of Reorganization (Medarex Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to indemnification now existing in favor (i) indemnify and hold harmless each individual that, as of any employeethe Effective Time, agent, is a present or former director or officer of MeriStar the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”), from and against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred by such individual in connection with any Action arising out of matters existing or occurring at or prior to the Effective Time or pertaining to the fact that the Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries or a fiduciary under any Company Benefit Plan or is or was serving at the request of the Company as a director or officer of any other corporation, partnership, joint venture, trust or other enterprise, whether asserted or claimed prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the MeriStar Subsidiaries (consummation of the "Indemnified Parties") as provided in their respective charters or by-lawstransactions contemplated hereby), to the fullest extent that the Company would have been permitted under applicable Law, the Company Charter and the Company Bylaws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise each case as in effect on the date of this Agreement Agreement, and Parent shall, or shall survive cause the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation to, advance expenses incurred by such individual in connection therewith to the fullest extent permitted under applicable Law as long as such individual provides an undertaking to repay such advances if it is ultimately determined that such individual is not entitled to indemnification; provided, however, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law, the Company Charter and/or the Company Bylaws shall indemnify all Indemnified Parties be made by independent counsel selected by the Surviving Corporation and (ii) without limitation to clause (i), to the fullest extent permitted by applicable law with respect Law, include and cause to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar be maintained in effect in the Surviving Corporation’s (or any successor’s) certificate of the MeriStar Subsidiaries or as trustees or fiduciaries incorporation and bylaws for a period of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, six years after the Effective Time, the Surviving Corporation shall pay current provisions regarding elimination of liability of directors, and indemnification of and advancement of expenses to directors, officers and employees of the Company, contained in the Company Charter and the Company Bylaws of the Company, each as incurred such Indemnified Party's legal and other expenses (including in effect as of the cost date of any investigation and preparation) incurred in connection therewiththis Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Petrohawk Energy Corp), Agreement and Plan of Merger (BHP Billiton LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers or employees, director as the case may be, of the Company or officer of MeriStar and the MeriStar its Subsidiaries (the "Indemnified Parties") as provided in their respective charters the Company’s or by-laws, in an agreement between an Indemnified Party and MeriStar or one each of the MeriStar Company’s Subsidiaries, ’ respective articles or otherwise certificates of incorporation or bylaws (or comparable organizational or governing documents) or in effect on the date of this Agreement any agreement shall survive the Merger and shall continue in full force and effect for effect. For a period of not less than six (6) years after from the Effective Time; provided that in , Parent and the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify (and Parent shall cause the Surviving Corporation to) (i) fulfill and honor all Indemnified Parties obligations of the Company to the Indemnitees with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the fullest extent permitted by applicable law with respect to all acts the Laws of the State of Delaware and omissions arising out required by: (x) the Restated Certificate of such individuals' services Incorporation, as officersamended, directorsor Bylaws, employees as amended (or agents equivalent organizational or governing documents), of MeriStar the Company or any of the MeriStar its Subsidiaries or affiliates as trustees or fiduciaries in effect on the date of any plan for this Agreement and (y) the benefit of employees, or otherwise on behalf of, MeriStar or any indemnification agreement(s) of the MeriStar Subsidiaries, occurring prior to Company or its Subsidiaries or other applicable Contract(s) as in effect on the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality date of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at and (ii) not amend, repeal or after, otherwise modify any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights thereunder of any investigation and preparation) incurred in connection therewithIndemnitees, unless such modification is required by the Laws of the State of Delaware.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Thestreet, Inc.), Agreement and Plan of Merger (theMaven, Inc.)
Directors’ and Officers’ Indemnification and Insurance. The Surviving Corporation shall, and Newco shall cause the Surviving Corporation to, (ai) ASC agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights past and present directors, officers and employees of Monsanto and its Subsidiaries to indemnification now existing in favor the same extent such persons are indemnified or have the right to advancement of any employee, agent, director or officer expenses as of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Monsanto pursuant to Monsanto's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the Merger date hereof with any directors, officers and shall continue employees of Monsanto and its Subsidiaries for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in full force connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and by-laws for a period of not less than six years after the Effective Time; , the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the certificate of incorporation and by-laws of Monsanto and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Monsanto (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time; provided, including however, that in no event shall the transactions contemplated by this Agreement. Without limiting the generality Surviving Corporation be required to expend in any one year an amount in excess of 200% of the foregoingannual premiums currently paid by Monsanto for such insurance; and, in provided, further, that if the event any annual premiums of such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Timeinsurance coverage exceed such amount, the Surviving Corporation shall pay as incurred be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithamount.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Home Products Corp), Agreement and Plan of Merger (Monsanto Co)
Directors’ and Officers’ Indemnification and Insurance. Following the Effective Time, Buyer shall (a) ASC agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing past and present directors, officers and employees of the Company (in favor all of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries their capacities) (the "Indemnified Parties") to the same extent such individuals are indemnified or have the right to advancement of expenses as provided in their respective charters or by-lawsof the date of this Agreement by the Company pursuant to the Company's certificate of incorporation, bylaws and indemnification agreements, if any, in an agreement between an Indemnified Party existence on the date hereof with, or for the benefit of, any directors, officers and MeriStar or one employees of the MeriStar SubsidiariesCompany for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), or otherwise (b) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of six years after the Effective Time, the provisions set forth in the Company's Certificate of Incorporation and Bylaws on the date of this Agreement regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses, which provisions shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim be amended, repealed or claims are asserted or made within otherwise modified during such six-year period, all period in any manner that would adversely affect the rights to indemnification in respect thereunder of any such claim or claims shall continue until final disposition of any Indemnified Party. After the Company Stockholder Approval has been obtained and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or close as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior practicable to the Effective Time, including the transactions contemplated Company shall purchase a five-year (measured from the Effective Time) extended reporting period endorsement with commercially reasonable terms ("REPORTING TAIL COVERAGE") under its existing directors' and officers' liability insurance policy(ies) covering those persons who are currently covered by this Agreement. Without limiting the generality Company's directors' and officers' liability insurance policy on terms no more favorable to such Indemnified Parties than the terms of such current insurance coverage; provided, that the cost of such reporting tail coverage shall not exceed 400% of the foregoingcurrent annualized costs of all the Company's directors' and officers' liability insurance policies effective during the period from January 31, in 2002 to January 31, 2003. Buyer and the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matterSurviving Corporation jointly and severally agree to pay all expenses, including attorneys' fees, that may be incurred by the transactions contemplated by Indemnified Parties in enforcing the indemnity and other obligations provided for in this Agreement, occurring at Section 6.6. The obligations of Buyer under this Section 6.6 shall not be terminated or after, 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 (i) this Section 6.6 shall survive the consummation of the Merger and the Effective Time, (ii) the indemnitees to whom this Section 6.6 applies shall be third party beneficiaries of and may enforce this Section 6.6 and (iii) this Section 6.6 shall be binding in all successors and assigns of Buyer and the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithCorporation).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Plato Learning Inc), Agreement and Plan of Merger (Lightspan Inc)
Directors’ and Officers’ Indemnification and Insurance. Following the Effective Time, Xxxxxxxx shall (ai) ASC agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers and employees of any employee, agent, director or officer of MeriStar Tosco and the MeriStar its Subsidiaries (in all of their capacities) (A) to the "Indemnified Parties") same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Tosco pursuant to Tosco's Amended and Restated Articles of Incorporation, By-laws and indemnification agreements, if any, in existence on the Merger date hereof with, or for the benefit of, any directors, officers and shall continue employees of Tosco and its Subsidiaries and (B) without limitation to clause (A), to the fullest extent permitted by law, in full force each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) articles of incorporation and by-laws for a period of not less than six years after the Effective Time; , provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses which are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current Amended and Restated Articles of Incorporation and By-laws of Tosco and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Tosco (provided that Xxxxxxxx (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time; provided, including the transactions contemplated by this Agreement. Without limiting the generality however, that in no event shall Xxxxxxxx be required to expend in any one year an amount in excess of 200% of the foregoingannual premiums currently paid by Tosco for such insurance; and, provided further that if the annual premiums of such insurance coverage exceed such amount, Xxxxxxxx shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. The obligations of Xxxxxxxx under this Section 6.7 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.7 applies without the event any consent of such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including affected indemnitee (it being expressly agreed that the transactions contemplated by indemnitees to whom this Agreement, occurring at or after, the Effective Time, the Surviving Corporation Section 6.7 applies shall pay as incurred such Indemnified Party's legal and other expenses (including the cost be third-party beneficiaries of any investigation and preparation) incurred in connection therewiththis Section 6.7).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tosco Corp), Agreement and Plan of Merger (Phillips Petroleum Co)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC The Parent agrees that all rights the Certificate of Incorporation and By- laws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification now existing in favor at least as favorable to employees, agents, directors or officers of any employee, agent, director or officer of MeriStar the Company and the MeriStar Company Subsidiaries (the "Indemnified Parties") as those provided in their respective charters the certificate of incorporation or ------------------- by-laws, in an agreement between an Indemnified Party and MeriStar or one laws of the MeriStar Subsidiaries, or otherwise Company as in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six years after from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company, unless such modification is required by law; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall foregoing parties are expressly made third party beneficiaries to the provisions of this Section 5.9. The Parent also agrees to indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar the Company or any of the MeriStar Company Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar the Company or any of the MeriStar Company Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or afterprior to, and including, the Effective Time, the Surviving Corporation shall Parent will pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Blaze Software Inc), Agreement and Plan of Merger (Brokat Infosystems Ag)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for For a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims Investors Bancorp shall continue until final disposition of any indemnify, defend and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employeeshold harmless each person who is now, or otherwise on behalf of, MeriStar who has been at any time before the date hereof or any of the MeriStar Subsidiaries, occurring prior to who becomes before the Effective Time, an officer or director of Brooklyn Bancorp or an Brooklyn 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 transactions contemplated by this Agreement. Without limiting the generality prior written consent of the foregoingInvestors Bancorp, in the event any such Indemnified Party is which consent shall not be unreasonably withheld) of or becomes involved in any capacity in any action, proceeding or investigation in connection with any matterclaim, including 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 the fact that such person is or was a director, officer or employee of Brooklyn Bancorp or an Brooklyn Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including, without limitation, the Merger and the other transactions contemplated by this Agreementhereby), occurring at regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, to the Surviving Corporation fullest extent as would have been permitted by Brooklyn Bancorp under the applicable Regulations and under Brooklyn Bancorp’s Certificate of Incorporation and Bylaws. Investors Bancorp shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as incurred would have been permitted by Brooklyn Bancorp under applicable Regulations and under Brooklyn Bancorp’s Certificate of Incorporation and Bylaws, upon receipt of an undertaking to repay such 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 this Section 6.09 upon learning of any Claim, shall notify Investors Bancorp (but the failure to so notify Investors 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 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 investigation (whether arising before or after the Effective Time), (i) Investors Bancorp or an insurance carrier pursuant to Section 6.09(c) below shall have the right to assume the defense thereof and Investors Bancorp shall not be liable to such Indemnified Party's Persons for any legal and expenses of other counsel or any other expenses subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that if Investors Bancorp elects not to assume such defense or counsel for the Indemnified Persons advises that there are issues which raise conflicts of interest between Investors Bancorp and the Indemnified Persons, the Indemnified Persons may retain counsel which is reasonably satisfactory to Investors Bancorp, unless the Indemnified Person is provided with counsel by an insurance carrier pursuant to Section 6.09(c) below, and Investors Bancorp shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such counsel for the Indemnified Persons (including which may not exceed one firm in any jurisdiction), (ii) the cost Indemnified Persons will cooperate in the defense of any investigation such matter, (iii) Investors Bancorp shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and preparation(iv) incurred Investors Bancorp shall have no obligation hereunder to the extent that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Person in connection therewiththe manner contemplated hereby is prohibited by applicable laws and regulations.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Brooklyn Federal Bancorp, Inc.), Agreement and Plan of Merger (Investors Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employeeFollowing the Effective Time, agent, director or officer of MeriStar ConocoPhillips and the MeriStar Surviving Corporation shall (i) jointly and severally indemnify and hold harmless, and provide advancement of Expenses to, all past and present directors, officers and employees of Burlington and its Subsidiaries (in all of their capacities) (A) without limitation to subclause (B) below, to the "Indemnified Parties") same extent such individuals are indemnified or have the right to advancement of Expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Burlington pursuant to its Certificate of Incorporation and By-Laws of Burlington and indemnification agreements, if any, in existence on the Merger date hereof with, or for the benefit of, any such individuals and shall continue (B) without limitation to subclause (A) above, to the fullest extent permitted by law, in full force each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) and (ii) include and cause to be maintained in effect in the Certificate of Incorporation and By-Laws of the Surviving Corporation (or any successor to the Surviving Corporation) for a period of not less than six years after the Effective Time; provided , provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of Expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions contained in the event any claim or claims are asserted or made within such sixcurrent Certificate of Incorporation and By-year periodLaws of Burlington. Prior to the Effective Time, all rights Burlington shall endeavor to indemnification in respect of any such claim or claims (and if it is unable to, ConocoPhillips shall continue until final disposition of any and all such claims. The cause the Surviving Corporation shall indemnify all Indemnified Parties to after the fullest extent permitted Effective Time) obtain and fully pay (up to a maximum cost of 300% of the current annual premium paid by applicable law Burlington for its existing coverage in the aggregate) for "tail" insurance policies (providing only for the Side A coverage for such covered individuals where the existing policies also include coverage for Burlington) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as Burlington's current insurance carrier with respect to all acts directors' and omissions arising out of such individualsofficers' services liability insurance in an amount and scope at least as officers, directors, employees favorable as Burlington's existing policies with respect to matters existing or agents of MeriStar occurring at or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conocophillips), Agreement and Plan of Merger (Burlington Resources Inc)
Directors’ and Officers’ Indemnification and Insurance. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Company and its Subsidiaries (in all of their capacities) (a) ASC agrees that all rights to indemnification now existing in favor the same extent such persons are indemnified or have the right to advancement of any employee, agent, director or officer expenses as of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the Company's certificate of incorporation, bylaws and shall continue indemnification agreements, if any, in full force existence on the date hereof with any directors, officers and employees of the Company and its Subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of not less than six years after the Effective Time; , the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the certificate of incorporation and bylaws of the Company and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by the Company (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Williams Companies Inc), Agreement and Plan of Merger (Apco Argentina Inc/New)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of any employeethe current or former directors, agentofficers, director managers, or officer employees, as the case may be, of MeriStar the Company, its Subsidiaries or the Company’s Affiliates, including but not limited to officers and employees of the MeriStar Subsidiaries Company’s investment advisor, Oak Hill Advisors, L.P. (collectively, the "“D&O Indemnified Parties"”) as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise organizational documents as in effect on the date of this Agreement or in any Contract disclosed or made available to Parent prior to the date of this Agreement shall survive the Merger Mergers and shall continue in full force and effect for a period of not less than six years after effect. Parent shall indemnify, defend and hold harmless, and advance expenses to the D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective TimeTime (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent permitted by Applicable Law as required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any action pending or asserted or any claim made within such claim or claims period shall continue until final the disposition of such action or resolution of such claim. Parent shall cause the Surviving Corporation’s (and any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties of its successors’) articles of incorporation, bylaws or other organizational documents to the fullest extent permitted by applicable law contain provisions with respect to all acts indemnification, advancement of expenses and omissions arising out limitation of such individuals' services as officersdirector, directors, employees or agents of MeriStar or any of officer and employee liability with respect to the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for D&O Indemnified Parties and the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring period prior to the Effective Time, including Time that are no less favorable to the transactions contemplated by this Agreement. Without limiting D&O Indemnified Parties than those set forth in the generality Company’s organizational documents as of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by date of this Agreement, occurring at which provisions thereafter shall not be amended, repealed or after, otherwise modified in any manner that would adversely affect the Effective Time, rights thereunder of the Surviving Corporation shall pay as incurred such D&O Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithParties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (OHA Investment Corp), Agreement and Plan of Merger (Portman Ridge Finance Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees The Parent and the Merger Sub agree that all rights to indemnification indemnification, advancement of expenses, and exculpation by the Company now existing in favor of each Person who is now, or has been at any employee, agent, time prior to the date hereof or who becomes prior to the Effective Time an officer or director or officer of MeriStar and the MeriStar Subsidiaries Company (the "each a “Company Indemnified Parties"Party”) as provided in their respective charters or by-lawsthe Charter Documents of the Company, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise 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 disclosed in Section 5.10 of the Company Disclosure Letter, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall continue remain in full force and effect for in accordance with their terms. For a period of not less than six two years after from the Effective Time, (i) the Surviving Corporation shall, and the Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification, and advancement of expenses equivalent to the provisions of the Charter Documents of the Company as in effect immediately prior to the Effective Time with respect to acts or omissions by any Company Indemnified Party occurring prior to the Effective Time, (ii) maintain a policy of director and officer liability insurance with commercially reasonable coverage, however, in no event shall such coverage be less than any such current policy maintained by the Company for the period prior to the Effective Time,] and (iii) shall not amend, repeal, or otherwise modify any such policies or provisions in the Charter Documents in any manner that would adversely affect the rights thereunder of any Company Indemnified Party; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any claim made for indemnification within such claim or claims period shall continue until final the disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out action or resolution of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithclaim.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (ALKALINE WATER Co INC), Agreement and Plan of Merger
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of any employeethe current or former directors, agentofficers, director managers, or officer employees, as the case may be, of MeriStar the Company, its Subsidiaries or the Company’s Affiliates, including but not limited to officers and employees of the MeriStar Subsidiaries Company External Advisor (collectively, the "“D&O Indemnified Parties") ”), as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise organizational documents as in effect on the date of this Agreement or in any Contract disclosed or made available to Parent prior to the date hereof shall survive the Merger Mergers and shall continue in full force and effect for a period of not less than six years after effect. Parent shall indemnify, defend and hold harmless, and advance expenses to the D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective TimeTime (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent that the Company or its Subsidiaries would be permitted by Applicable Law as required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any action pending or asserted or any claim made within such claim or claims period shall continue until final the disposition of any and all such claimsaction or resolution of such claim. The Parent shall cause the Surviving Corporation shall indemnify all Indemnified Parties Corporation’s certificate of incorporation, bylaws or other organizational documents to the fullest extent permitted by applicable law contain provisions with respect to all acts indemnification, advancement of expenses and omissions arising out limitation of such individuals' services as officersdirector, directors, employees or agents of MeriStar or any of officer and employee liability with respect to the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for D&O Indemnified Parties and the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring period prior to the Effective Time, including Time that are no less favorable to the transactions contemplated by this Agreement. Without limiting D&O Indemnified Parties than those set forth in the generality Company’s and its Subsidiaries’ organizational documents as of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by date of this Agreement, occurring at which provisions thereafter shall not be amended, repealed or after, otherwise modified in any manner that would adversely affect the Effective Time, rights thereunder of the Surviving Corporation shall pay as incurred such D&O Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithParties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Portman Ridge Finance Corp), Agreement and Plan of Merger (Harvest Capital Credit Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than For six years after the Acceptance Date, Parent shall cause the Surviving Corporation to indemnify and hold harmless each person who is now or was prior to the Effective Time; provided that Date an officer or director of the Company or the Company Subsidiaries and each person who is now or was prior to the Effective Date an officer or director of the Company or the Company Subsidiaries who served as a fiduciary under or with respect to any employee benefit plan of the Company or the Company Subsidiaries (within the meaning of Section 3(3) of ERISA) (each, an “Indemnified Person”) against any costs or expenses (including advancing attorneys’ fees and expenses in advance of the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all claim, suit, proceeding or investigation to each Indemnified Parties Person to the fullest extent permitted by applicable law Law; provided, that such advance shall be conditioned upon the Surviving Company’s receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be ultimately determined by final judgment of a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified pursuant to this Section 7.7(a)), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation in respect to all acts and omissions of or arising out of such individuals' services as officers, directors, employees acts or agents of MeriStar omissions occurring or any of the MeriStar Subsidiaries alleged to have occurred at or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality based in whole or in part on or arising in whole or in part out of the foregoing, in fact that such person is or was an officer or director of the Company and the Company Subsidiaries or a fiduciary under or with respect to any employee benefit plan of the Company or the Company Subsidiaries. In the event of any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, Parent and the Surviving Corporation shall pay as incurred such cooperate with the Indemnified Party's legal and other expenses (including Person in the cost defense of any investigation and preparation) incurred in connection therewithsuch action.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wind River Systems Inc), Agreement and Plan of Merger (Intel Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers or employees, director as the case may be, of the Company or officer of MeriStar and the MeriStar its Subsidiaries (the "“ Indemnified Parties"Parties ”) as provided in their respective charters the Company Certificate, the Company Bylaws (or by-laws, in an agreement between an Indemnified Party and MeriStar or one equivalent organizational documents of the MeriStar SubsidiariesCompany or any of its Subsidiaries or Affiliates) or in any agreement (a “ Company Indemnity Agreement”), or otherwise each as in effect on the date of this Agreement Agreement, shall survive the Offer and the Merger and shall continue in full force and effect for a period in accordance with their terms. The Company has made available to Parent true and complete copies of not less than six years all Company Indemnity Agreements. Parent and the Company shall, from and after the Acceptance Time, and, if after the Effective Time; provided that in , the event any claim Surviving Entity shall (and Parent shall cause the Company or claims are asserted or made within such six-year periodthe Surviving Entity, all rights as applicable, to) indemnify, defend and hold harmless, and advance expenses to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and or omissions arising out of by them in their capacities as such individuals' services as officers, directors, employees or agents of MeriStar or at any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring time prior to the Effective Time, including to the transactions contemplated by fullest extent provided by: (i) the Company Certificate, the Company Bylaws (or equivalent organizational documents of the Company or any of its Subsidiaries or affiliates) as in effect on the date of this Agreement. Without limiting the generality of the foregoing, in the event ; and (ii) any Company Indemnity Agreement between any such Indemnified Party is on the one hand and the Company or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including of its Subsidiaries on the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithhand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers, director partners, members, trustees or officer employees, as the case may be, of MeriStar and the MeriStar Company or the Company Subsidiaries (the "Indemnified Parties") as provided in their respective charters the Company Charter or by-laws, in an agreement between an Indemnified Party and MeriStar the Company Bylaws or one each of the MeriStar Company Subsidiaries, ’ respective articles or otherwise certificates of incorporation or bylaws (or comparable organizational or governing documents) or in effect on the date of this Agreement any agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after in accordance with their terms. Parent and the Effective Time; provided that in Surviving Entity shall (and Parent shall cause the event any claim or claims are asserted or made within such six-year periodSurviving Entity to) (i) indemnify, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any defend and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law hold harmless, and advance expenses to, Indemnitees with respect to all acts and or omissions arising out of by them in their capacities as such individuals' services as officers, directors, employees or agents of MeriStar or at any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring time prior to the Effective Time, including to the transactions contemplated by this Agreement. Without limiting fullest extent required by: (x) the generality Company Charter or Company Bylaws, or the articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) of any of the foregoingCompany Subsidiaries, in each case, as in effect on the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by date of this Agreement, occurring at (y) any indemnification agreement of the Company or afterthe Company Subsidiaries or other applicable contract as in effect on the date of this Agreement and listed in the Company Disclosure Letter, or (z) applicable Law, and (ii) not amend, repeal or otherwise modify any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights thereunder of any investigation and preparation) incurred in connection therewithIndemnitees.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ventas Inc), Agreement and Plan of Merger (Nationwide Health Properties Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar From and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or 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 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 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's 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 and 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, (including ii) except to the cost 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 investigation and preparation) incurred in connection therewithAction effected without its prior written consent, which consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Enstar Group LTD), Agreement and Plan of Merger (SeaBright Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers or employees, director as the case may be, of the Company or officer of MeriStar and the MeriStar its Subsidiaries (the "“Indemnified Parties"”) as provided in their respective charters the Company Certificate, the Company Bylaws (or by-laws, in an agreement between an Indemnified Party and MeriStar or one equivalent organizational documents of the MeriStar SubsidiariesCompany or any of its Subsidiaries or Affiliates) or in any agreement (a “Company Indemnity Agreement”), or otherwise each as in effect on the date of this Agreement Agreement, shall survive the Offer and the Merger and shall continue in full force and effect for a period in accordance with their terms. The Company has made available to Parent true and complete copies of not less than six years all Company Indemnity Agreements. Parent and the Company shall, from and after the Acceptance Time, and, if after the Effective Time; provided that in , the event any claim Surviving Entity shall (and Parent shall cause the Company or claims are asserted or made within such six-year periodthe Surviving Entity, all rights as applicable, to) indemnify, defend and hold harmless, and advance expenses to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and or omissions arising out of by them in their capacities as such individuals' services as officers, directors, employees or agents of MeriStar or at any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring time prior to the Effective Time, including to the transactions contemplated by fullest extent provided by: (i) the Company Certificate, the Company Bylaws (or equivalent organizational documents of the Company or any of its Subsidiaries or affiliates) as in effect on the date of this Agreement. Without limiting the generality of the foregoing, in the event ; and (ii) any Company Indemnity Agreement between any such Indemnified Party is on the one hand and the Company or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including of its Subsidiaries on the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithhand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hertz Global Holdings Inc), Agreement and Plan of Merger (Dollar Thrifty Automotive Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that From and after the Effective Date, BidCo shall cause the Company to assume all rights obligations of the Company and its subsidiaries in respect of exculpation, indemnification and advancement of expenses for each individual who on the Effective Date is, or at any time prior to indemnification now existing in favor of any employeethe Effective Date was, agent, a director or officer of MeriStar and the MeriStar Subsidiaries Company, or, while a director or officer of the Company, is or was a director or officer of its subsidiaries (each, an “Indemnified Party”), for acts or omissions occurring on or prior to the "Indemnified Parties") Effective Date as provided in their respective charters or by-laws, in an agreement between an Indemnified Party the Certificate of Incorporation and MeriStar or one Articles of the MeriStar Subsidiaries, or otherwise Association as in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for Agreement. For a period of not less than six (6) years after from the Effective Time; provided Date, the Company shall maintain, and BidCo shall cause the Company to maintain, provisions of the Certificate of Incorporation and Articles of Association with respect to limitation of liabilities of directors and indemnification and advancement of expenses of officers and directors of the Company that are no less favorable to the Indemnified Parties than are set forth in the event Certificate of Incorporation and Articles of Association as in effect on the date of this Agreement, and shall not prior to the expiration of such period amend, repeal or otherwise modify any claim or claims are asserted or made within such six-year periodprovisions in any manner that would adversely affect the rights thereunder of any Indemnified Party; provided, however, that all rights to indemnification in respect of any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”) made within such claim or claims six (6)-year period shall continue until final the disposition or resolution of such Proceeding in accordance with the Company’s Certificate of Incorporation and Articles of Association. Anything to the contrary in this Section 6.11 notwithstanding, any Person to whom an advancement of expenses is provided in connection with a Proceeding shall be required to provide, as a condition to such advancement, an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification in connection with such Proceeding. In the event of any and all such claims. The Surviving Corporation Proceeding (x) neither BidCo nor Company shall indemnify all Indemnified Parties settle, compromise or consent to the fullest extent permitted entry of any judgment in any Proceeding in which indemnification could be sought by applicable law with respect to such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all acts and omissions liability arising out of such individuals' services as officersProceeding or such Indemnified Party otherwise consents in writing to such settlement, directors, employees compromise or agents of MeriStar or any of consent and (y) the MeriStar Subsidiaries or as trustees or fiduciaries Company shall cooperate in the defense of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreementsuch matter. Without limiting the generality of the foregoing, in In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party is under this Section 6.11, (i) the Company or becomes involved in any capacity in any actionBidCo shall have the right, proceeding or investigation in connection with any matterbut not the obligation, including to control the transactions contemplated by this Agreement, occurring at or after, defense thereof after the Effective TimeDate, (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Surviving Corporation Company shall pay as incurred such Indemnified Party's legal and other expenses (including elect to control the cost defense of any investigation such Proceeding, (iii) the Company shall advance all reasonable fees and preparationexpenses of any counsel retained by an Indemnified Party promptly after statements therefor are received, whether or not the Company shall elect to control the defense of any such Proceeding and (iv) incurred in connection therewithno Indemnified Party shall be liable for any settlement effected without his or her prior express written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Samples: Acquisition Agreement (NCR Corp), Acquisition Agreement (Cardtronics PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees The Acquiring Parties and Merger Sub agree that all rights to indemnification exculpation, indemnification, contribution and advancement of expenses for facts, events, acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of the current or former directors, officers or employees of (or in a comparable role with) the Company or its Subsidiaries, or any employeeperson serving at the request of the Company or any of its Subsidiaries as a director, agent, director officer or officer employee of MeriStar and the MeriStar Subsidiaries (or in a comparable role with) another Person (the "“D&O Indemnified Parties") ”), as the case may be, in each case, as provided in their the respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one organizational documents of the MeriStar Subsidiaries, Company or otherwise its Subsidiaries or any indemnification or similar agreements in effect as of the date hereof that have been made available to the Acquiring Parties or that are in substantially the form included in the Company SEC Documents filed with or furnished to the SEC by the Company on or after the Spin Date and prior to the date of this Agreement Agreement, shall survive the Merger and shall continue in full force and effect in accordance with their terms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and SSW shall and shall cause the Surviving Corporation and its Subsidiaries to perform such obligations thereunder. SSW shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee (or comparable) liability that are no less favorable to the D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the Closing Date, which provisions thereafter shall not, for a period of not less than at least six (6) years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to from the Effective Time, including be amended, repealed or otherwise modified in any manner that would adversely affect the transactions contemplated by this Agreement. Without limiting the generality rights thereunder of the foregoingD&O Indemnified Parties, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated except as required by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithapplicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Veoneer, Inc.), Agreement and Plan of Merger (Qualcomm Inc/De)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar From and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall, and Parent shall pay as incurred cause the Surviving Corporation to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify and hold harmless (and advance expenses, provided the Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such Person is not entitled to indemnification) the present and former directors and officers of the Company and its Subsidiaries, or any fiduciaries under any 49 Company Benefit Plan (each, an “Indemnified Party's legal ”) against any and other all costs or expenses (including the cost of any investigation reasonable attorneys’ fees and preparation) incurred expenses), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection therewithwith any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement or the transactions contemplated hereby or arising out of or pertaining to the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the same extent such Indemnified Parties are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the Certificate of Incorporation and Bylaws of the Company and the agreements listed on Section 6.10(e) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tower Group, Inc.), Agreement and Plan of Merger (Tower Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that 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 officer and director of the Company and its subsidiaries (the “Indemnified Parties”), against all rights claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation arising out of matters existing or occurring at or prior to indemnification now existing in favor of any employee, agent, director or officer of MeriStar the Effective Time (including this Agreement and the MeriStar Subsidiaries (transactions and actions contemplated hereby) and based upon the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an fact that the Indemnified Party and MeriStar is or one was an officer or director of the MeriStar SubsidiariesCompany or any of its subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by under applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of law. In the MeriStar Subsidiaries or as trustees or fiduciaries event of any plan for the benefit such claim, action, suit, proceeding or investigation, (i) each Indemnified Party will be entitled to advancement of employees, legal or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, other expenses incurred in the event defense of any such Indemnified Party is or becomes involved in any capacity in any claim, action, suit, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at from Parent or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the reasonable cost of any investigation and preparation) preparation incurred in connection therewith) within ten (10) business days of receipt by Parent 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 required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (ii) neither Parent nor 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 that is an actual, threatened or probable party), 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 (iii) Parent and the Surviving Corporation shall cooperate in the defense of any such matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vnu Group B.V.), Agreement and Plan of Merger (Netratings Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employeeThe indemnification, agent, director or officer of MeriStar advancement and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one exculpation provisions of the MeriStar Subsidiariesindemnification agreements by and between the Company and its directors and officers, as in effect at the Effective Time, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) honor and fulfill in all respects the obligations of the Group Companies under (i) any indemnification, advancement of expenses and exculpation provision set forth in any memorandum and articles of association or comparable organizational documents of the Company or any of its Subsidiaries as in effect on the date of this Agreement Agreement, and (ii) all indemnification agreements between the Company or any of its Subsidiaries and any Indemnified Party. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions 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 the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law accordance with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithits terms.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (iClick Interactive Asia Group LTD), Agreement and Plan of Merger (Sina Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC 7.3.1. Holdco agrees that all rights to indemnification now indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favour of each present and former director, officer or employee of Elan, or Bidder or any of their respective Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Elan or Bidder or any of their respective Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the Merger consummation of the Scheme and the Merger; as applicable, and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Effective Time, Holdco shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Elan, Bidder and their respective Subsidiaries or in any agreement to which Elan, Bidder or any of their respective Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of Elan, Bidder or any of their respective Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided provided, however, that in the event any claim claim, action, suit proceeding or claims are investigation is pending, asserted or made either prior to the Effective Time or within such six-six year period, all rights to indemnification indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3.1 in respect of any such claim or claims thereof shall continue until final disposition of any thereof. From and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to after the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality Holdco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Elan, Bidder and their respective Subsidiaries to honour, in accordance with their respective terms, each of the foregoing, covenants contained in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay Clause 7.3 without limit as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithto time.
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Perrigo Co)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employeeFollowing the Effective Time, agent, director or officer of MeriStar Parent and the MeriStar Surviving Corporation shall, to the extent permitted by law, (i) jointly and severally indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Company and its Subsidiaries (in all of their capacities) (A) to the "Indemnified Parties") same extent such individuals are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the certificate of incorporation and shall continue bylaws of the Company and indemnification agreements, if any, in full force existence on the date hereof with, or for the benefit of, any directors, officers and employees of the Company and its Subsidiaries and (B) without limitation to subclause (A) above, to the fullest extent permitted by law, in each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the certificate of incorporation and bylaws of the Surviving Corporation (or any successor to the Surviving Corporation) for a period of not less than six years after the Effective Time; , provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses that are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of incorporation and bylaws and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance with one or more reputable unaffiliated third-party insurers maintained by the Company (provided that Parent (or any successor thereto) may substitute therefor one or more policies with one or more reputable unaffiliated third-party insurers of at least the same coverage and amounts containing terms and conditions that are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time; provided, including however, that in no event shall the transactions contemplated by this Agreement. Without limiting the generality Surviving Corporation be required to expend in any one year an amount in excess of 300% of the foregoing, in annual premiums currently paid by the event any Company for such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including insurance if the transactions contemplated by this Agreement, occurring at or after, Board of Directors of Parent as constituted after the Effective TimeTime shall have so determined; and, provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall pay as incurred obtain a policy with at least the greatest coverage available for a cost not exceeding such Indemnified Party's legal amount. Notwithstanding any foregoing provision to the contrary, the treatment of past and other present directors, officers and employees of the Company and its Subsidiaries with respect to elimination of liability, indemnification, advancement of expenses (including and liability insurance under this Section 7.06 shall be, in the cost aggregate, no less advantageous to the intended beneficiaries thereof than the corresponding treatment of any investigation the past and preparation) incurred in connection therewithpresent directors, officers and employees of Parent and its Subsidiaries under Section 7.06(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (St Paul Companies Inc /Mn/), Agreement and Plan of Merger (St Paul Companies Inc /Mn/)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers or employees, director as the case may be, of the Company or officer of MeriStar and the MeriStar its Subsidiaries (the "“ Indemnified Parties"”) as provided in their respective charters the Company Certificate, the Company Bylaws (or by-laws, in an agreement between an Indemnified Party and MeriStar or one equivalent organizational documents of the MeriStar SubsidiariesCompany or any of its Subsidiaries or Affiliates) or in any agreement (a “ Company Indemnity Agreement”), or otherwise each as in effect on the date of this Agreement Agreement, shall survive the Offer and the Merger and shall continue in full force and effect for a period in accordance with their terms. The Company has made available to Parent true and complete copies of not less than six years all Company Indemnity Agreements. Parent and the Company shall, from and after the Acceptance Time, and, if after the Effective Time; provided that in , the event any claim Surviving Entity shall (and Parent shall cause the Company or claims are asserted or made within such six-year periodthe Surviving Entity, all rights as applicable, to) indemnify, defend and hold harmless, and advance expenses to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and or omissions arising out of by them in their capacities as such individuals' services as officers, directors, employees or agents of MeriStar or at any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring time prior to the Effective Time, including to the transactions contemplated by fullest extent provided by: (i) the Company Certificate, the Company Bylaws (or equivalent organizational documents of the Company or any of its Subsidiaries or affiliates) as in effect on the date of this Agreement. Without limiting the generality of the foregoing, in the event ; and (ii) any Company Indemnity Agreement between any such Indemnified Party is on the one hand and the Company or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including of its Subsidiaries on the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithhand.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that For six (6) years after the Effective Time, the Surviving Company and its Subsidiaries shall, and Parent shall cause the Surviving Company and its Subsidiaries to, honor and fulfill in all rights to indemnification now existing respects the obligations of the Company under its certificate of incorporation and bylaws and its Subsidiaries under their respective certificates of incorporation and bylaws (and other similar organizational documents) and all agreements for indemnification, exculpation of liability or advancement of expenses, in favor effect as of the date hereof between the Company or any employee, agent, of its Subsidiaries and any of their respective current or former directors or officers or any person who becomes a director or officer of MeriStar and prior to the MeriStar Subsidiaries Effective Time (the "“Indemnified Parties") as provided in their respective charters or by-laws”), in an agreement between an Indemnified Party and MeriStar or one all of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and which shall continue in full force and effect for a period in accordance with their terms and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of not less than six years such Indemnified Parties. The foregoing notwithstanding, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time; provided that in ) is made against any Indemnified Party with respect to matters subject to indemnification hereunder on or prior to the event any claim or claims are asserted or made within such six-year periodsixth anniversary of the Effective Time, all the rights to indemnification and exculpation from liabilities and advancement of expenses referenced in respect of any such claim or claims the preceding sentence shall continue in effect until the final disposition of any such claim, action, suit, proceeding or investigation. From and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties after the Effective Time, to the fullest extent permitted by applicable law Applicable Law, the Surviving Company shall, and Parent shall cause the Surviving Company to, indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees matters existing or agents of MeriStar occurring or any of the MeriStar Subsidiaries alleged to occur at or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, Time (including this Agreement and the transactions and actions contemplated by this Agreement. Without limiting hereby)), arising out of or pertaining to the generality of fact that the foregoing, in the event any such Indemnified Party is or becomes involved in was an officer or director of the Company or any capacity in of its Subsidiaries or is or was serving at the request of the Company or any actionof its Subsidiaries as a director or officer of another Person, proceeding whether asserted or investigation in connection with any matterclaimed prior to, including the transactions contemplated by this Agreement, occurring at or after, after the Effective Time. In the event of any such Action, (i) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Corporation Company within ten (10) Business Days of receipt by the Surviving Company 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 required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall pay as incurred such Indemnified Party's legal and other expenses (including cooperate in the cost defense of any investigation and preparation) incurred in connection therewithsuch matter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bioceres Crop Solutions Corp.), Agreement and Plan of Merger (Marrone Bio Innovations Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that From and after the Effective Time the Surviving Entity shall, and Parent shall cause the Surviving Entity to, (i) indemnify and hold harmless, against any costs or expenses (including attorney’s fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors and officers of any employee, agent, director or officer of MeriStar the Company and the MeriStar Company Subsidiaries (the "in all of their capacities) (“Indemnified Parties"”) to the same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the Company’s Constituent Documents and shall continue indemnification agreements, if any, in full force existence on the date hereof with any directors and effect officers of the Company and the Company Subsidiaries and provided to Parent prior to the date hereof, and (ii) cause to be maintained for a period of not less than six years after the Effective Time; Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that the Surviving Entity (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all claims arising from facts or events that occurred on or before the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any the consummation of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for Transactions contemplated hereby); provided, that in no event shall the benefit of employees, or otherwise on behalf of, MeriStar or any Surviving Entity be required to expend more than 125% of the MeriStar Subsidiaries, occurring amount expended by the Company and the Company Subsidiaries to maintain or procure such directors’ and officers’ insurance liability insurance and fiduciary liability insurance immediately prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Land Lease Inc), Agreement and Plan of Merger (GCP Sunshine Acquisition, Inc. A Delaware Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees 8.6.1. The Buyer and the Company agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Closing Date that now existing exist in favor of any Person who prior to or on the Closing Date is or was a current or former director, officer or employee of the Company, or who at the request of the Company served prior to or on the Closing Date as a director, officer, member, manager, employee, agenttrustee or fiduciary of any other entity of any type (each a “D&O Indemnified Person”), director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") including as provided in their respective charters the Organizational Documents of the Company, or by-laws, in an any agreement between a D&O Indemnified Person and the Company (an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries“Indemnity Agreement”), or otherwise in effect on the date of this Agreement shall will survive the Merger Closing and shall will continue in full force and effect for a the six (6) year period of not less than six years after following the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year periodClosing Date, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by under applicable law law. In furtherance (and not in limitation of) the foregoing, for the six (6) year period following the Closing Date, the Buyer will cause the Company to, and the Company will (i) maintain in the Organizational Documents of the Company provisions with respect to all acts indemnification, advancement of expenses and omissions arising out of exculpation from liability that in each such individuals' services respect are at least as officersfavorable to each D&O Indemnified Person as those contained in the Company’s Organizational Documents, directorsas applicable, employees as in effect on the date hereof, which provisions will not be amended, repealed or agents of MeriStar or otherwise modified in any of manner that would adversely affect the MeriStar Subsidiaries or as trustees or fiduciaries rights thereunder of any plan for D&O Indemnified Person and (ii) continue in existence each Indemnity Agreement without termination, revocation, amendment or other modification that would adversely affect the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights thereunder of any investigation and preparation) incurred in connection therewithD&O Indemnified Person.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (IES Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (ai) ASC agrees that In the event the Merger is consummated, then until the seventh anniversary of the Effective Time, Parent will, and will cause the Surviving Company and any of their respective subsidiaries, to comply with, fulfill and honor, in any and all rights respects, all of the obligations of Parent and the Company and any of their respective subsidiaries to their respective present and former directors and officers (the “Covered Persons”) pursuant to indemnification now existing in favor of any employee, agent, director or officer of MeriStar agreements with Parent and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in Company or any of their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise subsidiaries in effect on the date Effective Time and pursuant to their respective Organization Documents, in each case, in effect on the Effective Time (the “Indemnification Provisions”), with respect to claims arising out of acts or omissions occurring at or prior to the Effective Time which are asserted after the Effective Time, including with respect to this Agreement shall survive Agreement, the Merger and the other transactions contemplated herein. Any claims for indemnification (and rights for advancement of expenses) made on or prior to the seventh anniversary of the Effective Time shall continue survive such anniversary until the final resolution thereof. Parent shall, and shall cause the Surviving Company and all of their respective subsidiaries to, keep in full force and effect for a period all Indemnification Provisions and neither Parent, the Surviving Company, any of not less than six years after the Effective Time; provided that in the event any claim their respective subsidiaries shall amend, modify or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or terminate any of the MeriStar Subsidiaries Indemnification Provisions, in each case, until the later of the seventh anniversary of the Effective Time or as trustees or fiduciaries the final resolution of any plan claims for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved indemnification in any capacity in manner that would adversely affect any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights thereunder of any investigation and preparation) incurred in connection therewithCovered Person.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Bimini Capital Management, Inc.), Agreement and Plan of Reorganization (FlatWorld Acquisition Corp.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that From and after the Effective Time the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify and hold harmless, against any costs or expenses (including attorney’s fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors and officers of any employee, agent, director or officer of MeriStar the Company and the MeriStar Company Subsidiaries (the "in all of their capacities) (“Indemnified Parties"”) to the same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the Company’s Constituent Documents and shall continue indemnification agreements, if any, in full force existence on the date hereof with any directors and effect officers of the Company and the Company Subsidiaries and provided to Parent prior to the date hereof, and (ii) cause to be maintained for a period of not less than six years after the Effective Time; Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all claims arising from facts or events that occurred on or before the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any the consummation of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for Transactions contemplated hereby); provided, that in no event shall the benefit of employees, or otherwise on behalf of, MeriStar or any Surviving Corporation be required to expend more than 250% of the MeriStar Subsidiaries, occurring amount expended by the Company and the Company Subsidiaries to maintain or procure such directors’ and officers’ insurance liability insurance and fiduciary liability insurance immediately prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Amazon Com Inc), Agreement and Plan of Merger (Audible Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar From and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in , Parent shall cause the event any claim or claims are asserted or made within such six-year periodSurviving Corporation, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of applicable law with respect Law adopted after the date of this Agreement that increase the extent to all acts which indemnification may be provided), to indemnify, defend and omissions arising out of such individuals' services hold harmless (and promptly advance expenses from time to time as officersincurred to the fullest extent permitted by Law, directorsprovided, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any plan for the benefit of employeescollateral) to repay such advances, if it is ultimately determined that such Person is not entitled to indemnification) each Person who is now, or otherwise on behalf of, MeriStar has been at any time prior to the Effective Time or any of the MeriStar Subsidiaries, occurring who becomes prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality a director or officer of the foregoingCompany or any of its Subsidiaries, in the event any such Indemnified Party Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) who is or becomes involved has acted as such at the request of the Company (each an “Indemnified Party”) from and against any and all costs or expenses (including attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in any capacity in any action, proceeding settlement or investigation incurred in connection with any matteractual or threatened claim (including a claim of violation of applicable Law), action, audit, demand, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative or other proceeding at law or in equity or order or ruling, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time (including by reason of such Indemnified Party’s service as such a director or officer of the Company or its Subsidiaries or as such a director, officer, trustee, fiduciary, employee or agent of another Person), including the approval of this Agreement and the Merger and the other transactions contemplated by this Agreementhereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, occurring whether asserted or claimed prior to, at or after, after the Effective Time, . Parent and the Surviving Corporation shall pay as incurred such reasonably cooperate with any Indemnified Party's legal and other expenses (including Party in the cost defense of any investigation and preparation) incurred in connection therewithmatter covered by this Section 6.8.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Parker Hannifin Corp), Agreement and Plan of Merger (Clarcor Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC From and after the Effective Time and ending on the sixth anniversary of the Effective Time, each of Parent and the Surviving Corporation agrees that all rights it will indemnify and hold harmless each present and former director and officer of the Company or any of its Subsidiaries (the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or awards paid in settlement, incurred in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”), arising out of, relating to indemnification now or in connection with matters existing in favor of any employee, agent, or occurring at or prior to the Effective Time (including the fact that such Person is or was a director or officer of MeriStar the Company or any of its Subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware Law and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party Certificate of Incorporation and MeriStar or one of the MeriStar Subsidiaries, or otherwise Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall survive advance expenses (including reasonable legal fees and expenses) incurred in the Merger defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 6.9, to the extent that such indemnification with respect to or advancement of such expenses is authorized under the Certificate of Incorporation, the Bylaws or the certificate of incorporation and shall continue in full force and effect for a period bylaws, or equivalent organizational documents, of not less than six years after the Effective Timeany Subsidiary; provided that in the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and non-appealable determination by a court of competent jurisdiction that such Person is not entitled to indemnification pursuant to this Section 6.9). In the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Proceeding (x) neither Parent nor the Surviving Corporation shall indemnify all Indemnified Parties settle, compromise or consent to the fullest extent permitted entry of any judgment in any Proceeding in which indemnification could be sought by applicable law with respect to such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all acts and omissions liability arising out of such individuals' services as officersProceeding or such Indemnified Party otherwise consents, directors, employees or agents of MeriStar or any of and (y) the MeriStar Subsidiaries or as trustees or fiduciaries Surviving Corporation shall cooperate in the defense of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreementsuch matter. Without limiting the generality of the foregoing, in In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party is or becomes involved in any capacity in any actionunder this Section 6.9, proceeding or investigation in connection with any matter, including (i) the transactions contemplated by this Agreement, occurring at or after, Surviving Corporation shall have the right to control the defense thereof after the Effective TimeTime (it being understood that, by electing to control the defense thereof, the Surviving Corporation shall pay as incurred such will be deemed to have waived any right to object to the Indemnified Party's legal and other expenses ’s entitlement to indemnification hereunder with respect thereto), (including ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the cost Surviving Corporation shall elect to control the defense of any investigation such Proceeding, and preparation(iii) incurred in connection therewith.no Indemnified Party shall be liable for any settlement effected without his or her prior express written consent. 57
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Renal Associates Holdings, Inc.), Agreement and Plan of Merger (American Renal Associates Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Acquiror agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and for the MeriStar Subsidiaries (entire period from the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than Effective Time until six years after the Effective Time; , (a) Acquiror will cause the Surviving Corporation to, indemnify and hold harmless, to the extent provided that in the event any claim or claims are asserted or made within such six-year period, all rights certificate of incorporation and bylaws of Company in the form provided to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties Acquiror prior to the fullest extent permitted by applicable law date of this Agreement, each person who on or prior to the Effective Time was a director or officer of the Company or any of its Subsidiaries with respect to all acts or omissions by such person in his or her capacity as such; (b) Acquiror will, and omissions arising out will cause Surviving Corporation to, maintain Company’s current directors’ and officers’ insurance and indemnification policy and related arrangements, or a substantially equivalent policy and related arrangements, subject in either case to terms and conditions substantially as advantageous to the present and former Company directors and officers of such individuals' services as officers, directors, employees or agents of MeriStar or Company and any of its Subsidiaries as those contained in the MeriStar policy and arrangements in effect on the date hereof and disclosed to Acquiror, for all present and former directors and officers of Company and any of its Subsidiaries covering claims made and insurable events with respect to matters arising or as trustees or fiduciaries of any plan for the benefit of employeesomissions occurring before, on, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or afterexisting at, the Effective TimeTime (provided that Surviving Corporation will not be required to maintain such policy except to the extent that the aggregate annual cost of maintaining such policy is not in excess of one hundred and fifty percent (150%) of the current annual cost, the in which case Surviving Corporation shall pay as incurred maintain such Indemnified Party's legal and other expenses (including the policies up to an annual cost of any investigation one hundred and preparationfifty percent (150%) incurred of the current annual cost); and (c) Acquiror will cause Surviving Corporation to maintain the existing indemnification provisions (including, provisions for expense advances for present and former Company officers and directors) in connection therewithSurviving Corporation’s certificate of incorporation and bylaws.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lockheed Martin Corp), Agreement and Plan of Merger (Titan Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees For six years from and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each present and former director and officer of the Company or any of its subsidiaries (in each case, when acting or having acted in such capacity), determined as of the Effective Time (the “Indemnified Parties”), against any costs and expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, arbitration, proceeding, investigation, mediation, consent decree, audit or inquiry, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”), arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that all rights to indemnification now existing in favor the Company would have been required under applicable Law, the Certificate of Incorporation, the Bylaws, the certificate of incorporation and bylaws (or equivalent governing documents) of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar SubsidiariesCompany’s subsidiaries, and any indemnification agreements with any directors and officers of the Company or otherwise any of its subsidiaries in effect on the date of this Agreement shall survive (the Merger “Existing Indemnification Rights”) to indemnify such Person (and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties also advance expenses (including reasonable and documented attorneys’ fees to the fullest extent that the Company would have been required to advance expenses under the Existing Indemnification Rights) as incurred to the fullest extent permitted by under applicable law with respect Law; provided, that the Person to all acts and omissions arising out of whom expenses are advanced provides an undertaking to repay such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior advances if it is ultimately determined that such Person is not entitled to the Effective Time, including the transactions contemplated by this Agreementindemnification). Without limiting the generality of the foregoing, in In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party is or becomes involved in any capacity in any actionunder this Section 6.10, proceeding or investigation in connection with any matter, including (i) the transactions contemplated by this Agreement, occurring at or after, Surviving Corporation shall have the right to control the defense thereof after the Effective Time, Time and the Indemnified Parties shall cooperate with Parent and the Surviving Corporation in such defense; provided that the Surviving Corporation shall pay all reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly as incurred statements therefor are received to the fullest extent that the Company would have been required to pay such fees and expenses under the Existing Indemnification Rights; (ii) Parent and the Surviving Corporation shall cooperate in the defense of any such matter if the Parent or Surviving Corporation elects not to assume the defense thereof; (iii) neither Parent nor the Surviving Corporation shall be liable for any settlement effected without their prior written consent and (iv) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any pending or threatened Proceeding to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party's legal Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise consents. In the event the Surviving Corporation or any of its successors or assigns consolidates or amalgamates or merges into with any other Person and other expenses (including shall not be the cost continuing or surviving company or entity of any investigation such consolidation, amalgamation or merger, then proper provision shall be made so that the successors and preparation) incurred assigns of the Surviving Corporation shall succeed to the obligations set forth in connection therewiththis Section 6.10.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Waste Management Inc), Agreement and Plan of Merger (Advanced Disposal Services, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries For six (the "Indemnified Parties"6) as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under any and all indemnification agreements in effect immediately prior to the Appointment Time between the Company or any of its Subsidiaries and any of their respective current or former directors and officers and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Appointment Time (the “Indemnified Parties”). In addition, for a period of six (6) years following the Effective Time, Parent shall (and shall cause the Surviving Corporation and its Subsidiaries to) (i) cause the certificate of incorporation and bylaws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation provisions contained in the certificate of incorporation and bylaws (or other similar organizational documents) of the Company and its Subsidiaries immediately prior to the Appointment Time, and during such six (6) year period, such provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of individuals who were covered by such provisions, except as required by applicable Law and (ii) and honor and fulfill the obligations of the Company under any indemnification agreements in effect as of the date hereof between the Company and any Indemnified Party; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hewlett Packard Co), Agreement and Plan of Merger (ArcSight Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to exculpation and indemnification now for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the Transactions), existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favor of the current or former directors, officers or employees, as the case may be, of the Company or its subsidiaries as provided in the Company’s or each of the Company’s subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) or in any agreement, shall survive the Merger and shall continue in full force and effect. After the Effective Time, Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the fullest extent required by: (x) the Restated Certificate of Incorporation or Bylaws (or equivalent organizational or governing documents) of the Company or any of its subsidiaries or affiliates as in effect on the date of this Agreement and (y) any indemnification agreement of the Company or its subsidiaries or other applicable contract as in effect on the date of this Agreement, and (ii) not amend, repeal or otherwise modify any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the rights thereunder of any Indemnitees with respect to any acts or omissions occurring on or prior to the Effective Time for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Steinway Musical Instruments Inc), Agreement and Plan of Merger (Steinway Musical Instruments Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees 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 any employee, agent, director the current or officer former directors or officers of MeriStar and the MeriStar Subsidiaries Company (the "“D&O Indemnified Parties"”) as provided in their respective charters the Certificate of Incorporation, the Bylaws or by-lawsany indemnification Contract between such directors or officers and the Company (in each case, as in effect on, and, in an agreement between an Indemnified Party and MeriStar or one the case of any indemnification Contracts, to the MeriStar Subsidiariesextent made available to Parent prior to, or otherwise in effect on the date of this Agreement Agreement) shall survive the Merger and shall continue in full force and effect for effect. For a period of not less than six (6) years after 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 provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Parties; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any claim made for indemnification within such claim or claims period shall continue until final the disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out action or resolution of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to claim. From and after the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoingParent shall guarantee and stand surety for, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, and shall cause the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including to honor, in accordance with their respective terms, each of the cost of any investigation and preparation) incurred covenants contained in connection therewiththis Section 5.7.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (United Technologies Corp /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of any employeethe current or former directors, agentofficers or employees, director as the case may be, of the Company or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") its subsidiaries as provided in their respective charters the Certificate of Incorporation, the Bylaws or by-laws, in an agreement between an Indemnified Party and MeriStar the equivalent organizational or one governing documents of the MeriStar Subsidiaries, Company’s subsidiaries or otherwise in effect any written agreement set forth on Section 5.7(a) of the date of this Agreement Company Disclosure Letter (the “Indemnity Agreements”) shall survive the Merger and shall continue in full force and effect in accordance with their terms to the extent provided in the following sentence. From and after the Effective Time and for a period of at least six (6) years, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, and advance expenses (subject to the person to whom expenses are advanced providing an undertaking to repay such advances if it is finally determined by a court of competent jurisdiction that such person is not less than six years after entitled to indemnification) to, any individual who, on or prior to the Effective Time; provided that in , was an officer, director or employee of the event any claim Company or claims are asserted served on behalf of the Company as an officer, director or made within such six-year period, all rights to indemnification in respect employee of any of the Company’s subsidiaries or any of their predecessors and the heirs, executors, trustees, fiduciaries and administrators of such claim officer, director or claims shall continue until final disposition of employee (each, an “Indemnitee”) with respect to all acts or omissions by them in their capacities as such at any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties time prior to the Effective Time, to the fullest extent permitted by applicable law with respect to all acts Law and omissions arising out required by (x) the Certificate of such individuals' services as officersIncorporation, directors, employees the Bylaws or agents of MeriStar the equivalent organizational or any governing documents of the MeriStar Subsidiaries Company’s subsidiaries as in effect on the date of this Agreement and (y) the Indemnity Agreements, and (ii) not amend, repeal or as trustees or fiduciaries otherwise modify for a period of at least six (6) years any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the rights thereunder of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any Indemnitees. The Company has made available to Parent copies of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithIndemnity Agreements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (IPC Healthcare, Inc.), Agreement and Plan of Merger (Team Health Holdings Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC From and after the Effective Time Parent agrees that it will and will cause the Surviving Corporation to (i) indemnify and hold harmless, against any costs or expenses (including attorney's fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers, employees and agents of any employee, agent, director or officer of MeriStar the Company and the MeriStar its Subsidiaries (in all of their capacities) (A) to the "Indemnified Parties") same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the Company's articles of incorporation, bylaws and shall continue indemnification agreements, if any, in full force existence on the date hereof with any directors, officers or employees of the Company and its Subsidiaries and (B) without limitation to clause (A), to the fullest extent permitted by law, in each case, for acts or omissions at or prior to the Effective Time (including for acts or omissions occurring in connection with the adoption and approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's and Parent's (or any successor's) articles of incorporation and by-laws or similar organizational or constitutive documents for a period of not less than six years after the Effective Time; provided that , the current provisions, or in the event any claim or claims are asserted or made within such six-year periodcase of Parent, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties substantially similar provisions (to the fullest extent permitted under Bermuda law) regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the articles of incorporation and bylaws of the Company and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by applicable law the Company (provided, that Parent (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time, Time (including for acts or omissions occurring in connection with the adoption and approval of this Agreement and the consummation of the transactions contemplated hereby). Such substitute policies shall be issued by this Agreementinsurance companies having the same or better ratings and levels of creditworthiness as the insurance companies that have issued the current policies. Without limiting the generality The obligations of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, Parent and the Surviving Corporation under this Section 5.6 shall pay not be terminated or modified in such a manner as incurred to adversely affect any indemnitee to whom this Section 5.6 applies without the consent of such Indemnified Party's legal and other expenses affected indemnitee (including it being expressly agreed that the cost indemnitees to whom this Section 5.6 applies shall be third party beneficiaries of any investigation and preparation) incurred in connection therewiththis Section 5.6).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Castlewood Holdings LTD), Agreement and Plan of Merger (Enstar Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees From and after the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Entity shall indemnify and hold harmless each present (as of the Effective Time) and former director and officer of the Company or any of its subsidiaries (in each case, when acting in such capacity) (the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”), arising out of, relating to or in connection with the fact that all rights to indemnification now existing in favor of any employee, agent, such Person is or was a director or officer of MeriStar and the MeriStar Subsidiaries (Company or any of its subsidiaries or serving in such capacity at the "Indemnified Parties") request thereof or any acts or omissions occurring or alleged to occur prior to the Effective Time in such person’s capacity as provided in their respective charters a director or by-laws, in an agreement between an Indemnified Party and MeriStar or one officer of the MeriStar SubsidiariesCompany or any of its subsidiaries or serving in such capacity at the request thereof, whether asserted or otherwise claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Maryland Law and its Company Charter and Company Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent or the Surviving Entity shall survive the Merger advance expenses (including reasonable legal fees and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that expenses) incurred in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect defense of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties Proceeding to the fullest extent permitted by under applicable law Law, the Company Charter, the Company Bylaws or the certificate of incorporation, articles of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the 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 pursuant to this Section 6.10); 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 Maryland Law and the Company’s Charter and the Company’s Bylaws shall be made by independent counsel selected by the Surviving Entity. In the event of any such Proceeding (x) neither Parent nor the Surviving Entity 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 acts and omissions liability arising out of such individuals' services as officersProceeding or such Indemnified Party otherwise consents, directors, employees or agents of MeriStar or any of and (y) the MeriStar Subsidiaries or as trustees or fiduciaries Surviving Entity shall reasonably cooperate in the defense of any plan for such matter. In the benefit of employeesevent any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party under this Section 6.10, or otherwise on behalf of, MeriStar or any of (i) the MeriStar Subsidiaries, occurring prior Surviving Entity shall have the right to control the defense thereof after the Effective Time, including (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the transactions contemplated by this Agreement. Without limiting Surviving Entity shall elect to control the generality defense of the foregoing, in the event any such Proceeding, (iii) the Surviving Entity shall pay all reasonable fees and expenses of any one such counsel retained by an Indemnified Party is promptly after statements therefor are received, whether or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, not the Surviving Corporation Entity shall pay as incurred such Indemnified Party's legal and other expenses (including elect to control the cost defense of any investigation such Proceeding, and preparation(iv) incurred in connection therewithno Indemnified Party shall be liable for any settlement effected without his or her prior express written consent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CorePoint Lodging Inc.), Agreement and Plan of Merger (CorePoint Lodging Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of any employeethe current or former directors, agentofficers, director managers, or officer employees, as the case may be, of MeriStar the Company, its Subsidiaries or the Company’s Affiliates, including but not limited to officers and employees of the MeriStar Subsidiaries Company Investment Adviser to the extent related to the management of the Company (collectively, the "“D&O Indemnified Parties"”) as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise organizational documents as in effect on the date of this Agreement or in any Contract as in effect on the date hereof shall survive the Merger Mergers and shall continue in full force and effect for a period of not less than six years after effect. Parent shall indemnify, defend and hold harmless, and advance expenses to the D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective TimeTime (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent that the Company or its Subsidiaries would be permitted by Applicable Law and to the fullest extent required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any action pending or asserted or any claim made within such claim or claims period shall continue until final the disposition of any and all such claimsaction or resolution of such claim. The Surviving Corporation shall indemnify all Indemnified Parties to To the fullest maximum extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any the Laws of the MeriStar Subsidiaries or as trustees or fiduciaries State of any plan Maryland, for the benefit a period of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to six (6) years following the Effective Time, including Parent shall cause its and the transactions contemplated by this Agreement. Without limiting Surviving Corporation’s (and any of their respective successors’) articles of incorporation, bylaws or other organizational documents to contain provisions with respect to indemnification, advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the generality D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by date of this Agreement, occurring at which provisions thereafter shall not be amended, repealed or after, otherwise modified in any manner that would adversely affect the Effective Time, rights thereunder of the Surviving Corporation shall pay as incurred such D&O Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithParties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Barings BDC, Inc.), Agreement and Plan of Merger (Sierra Income Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that Holdco shall (i) indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers and employees of any employee, agent, director or officer of MeriStar Time Warner and the MeriStar its Subsidiaries (in all of their capacities) (a) to the "Indemnified Parties") same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Time Warner pursuant to Time Warner's certificate of incorporation, bylaws and indemnification agreements, if any, in existence on the Merger date hereof with any directors, officers and shall continue in full force employees of Time Warner and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year periodits Subsidiaries and (b) without limitation to clause (a), all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all law, in each case for acts and or omissions arising out of such individuals' services as officers, directors, employees occurring at or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated by this Agreement. Without limiting the generality hereby), (ii) include and cause to be maintained in effect in Holdco's (or any successor's) certificate of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, incorporation and bylaws after the Effective Time, provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses which are, in the Surviving Corporation aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of incorporation and bylaws of Time Warner and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Time Warner (provided that Holdco (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall pay Holdco be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by Time Warner for such insurance; and, provided further that if the annual premiums of such insurance coverage exceed such amount, Holdco shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. The obligations of Holdco under this Section 6.7(a) shall not be terminated or modified in such a manner as incurred to adversely affect any indemnitee to whom this Section 6.7(a) applies without the consent of such Indemnified Party's legal and other expenses affected indemnitee (including it being expressly agreed that the cost indemnitees to whom this Section 6.7(a) applies shall be third party beneficiaries of any investigation and preparation) incurred in connection therewiththis Section 6.7(a)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Time Warner Inc/), Agreement and Plan of Merger (America Online Inc)
Directors’ and Officers’ Indemnification and Insurance. Following the Effective Time, Valero shall (ai) ASC agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers and employees of any employee, agent, director or officer of MeriStar Premcor and the MeriStar its Subsidiaries (in all of their capacities) (A) to the "Indemnified Parties") same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or byof the date of this Agreement by Premcor pursuant to Premcor’s Certificate of Incorporation, By-lawslaws and indemnification agreements, if any, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect existence on the date of this Agreement shall survive with, or for the Merger benefit of, any directors, officers and shall continue employees of Premcor and its Subsidiaries and (B) without limitation to clause (A), to the fullest extent permitted by law, in full force each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation’s (or any successor to the business of the Surviving Corporation) certificate of incorporation and by-laws for a period of not less than six years after the Effective Time; , provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses that are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current Amended and Restated Certificate of Incorporation and the Amended and Restated By-laws of Premcor and (iii) cause to be maintained by the Surviving Corporation (or any successor to the business of the Surviving Corporation) for a period of six years after the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Premcor (provided that Valero (or any such successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions that are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time; provided, including the transactions contemplated by this Agreement. Without limiting the generality however, that in no event shall Valero (or any such successor) be required to expend in any one year an amount in excess of 200% of the foregoingannual premiums currently paid by Premcor for such insurance; and, in provided further, that if the event annual premiums of such insurance coverage exceed such amount, Valero (or any such Indemnified Party is successor) shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. The obligations of Valero (or becomes involved in any capacity in any action, proceeding such successor) under this Section 6.6 shall not be terminated or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, modified following the Effective Time, Time in such a manner as to adversely affect any indemnitee to whom this Section 6.6 applies without the Surviving Corporation shall pay as incurred consent of such Indemnified Party's legal affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 6.6 applies and their respective heirs and other expenses (including the cost of any investigation representatives shall be third-party beneficiaries of, and preparation) incurred in connection therewithentitled to enforce, this Section 6.6).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Premcor Inc), Agreement and Plan of Merger (Valero Energy Corp/Tx)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to exculpation and indemnification (and all rights to advancement of expenses relating thereto) for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement, including the Merger), now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") Indemnitees as provided in their respective charters the Charter or byBy-laws, in an agreement between an Indemnified Party and MeriStar laws (or one such equivalent organizational or governing documents of any of the MeriStar Subsidiaries, or otherwise Company’s Subsidiaries as in effect on the date of this Agreement Agreement) or in any Contract between such Indemnitee and the Company or any of its Subsidiaries (in each case as in effect on the date hereof) shall survive the Merger and shall continue in full force and effect for a period of not less than six years effect. From and after the Effective Time; provided that in , Parent and the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to, to the fullest extent the Company would have been permitted to do so under applicable Law, Indemnitees with respect to (x) all Indemnified Parties acts or omissions by them in their capacities as such at any time at or prior to the Effective Time or (y) any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to the Merger, this Agreement and any transactions contemplated hereby, in either case, to the fullest extent permitted by (i) the Charter or By-laws (or such equivalent organizational or governing documents of any of the Company’s Subsidiaries as in effect on the date of this Agreement), (ii) any indemnification agreement of the Company or its Subsidiaries or other applicable law contract as in effect on the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnitees or (iii) applicable Law. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to all acts indemnification, advancement of expenses and omissions arising out limitation of such individuals' services director, officer and employee liability that are no less favorable to the Indemnitees than those set forth in the Charter and By-laws and the Company’s Subsidiaries’ organizational documents as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries date of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at which provisions thereafter shall not be amended, repealed or after, otherwise modified in any manner that would adversely affect the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost rights thereunder of any investigation and preparation) incurred in connection therewithIndemnitees.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Scientific Games Corp), Agreement and Plan of Merger (WMS Industries Inc /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that For a period of six (6) years from and after the Closing, the Trayport Companies shall indemnify and hold harmless, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors and officers of any employee, agent, Trayport Company as of the date hereof and anyone who becomes a director or officer of MeriStar and any Trayport Company during the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on period from the date of this Agreement through the Closing (in such capacities) (the “D&O Indemnified Persons”) for all acts and omissions occurring at or prior to the Closing to the same extent such D&O Indemnified Persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Trayport Companies pursuant to the organizational documents of any applicable Trayport Company as in existence on the date hereof, in each case, to the fullest extent that such indemnification and advancement is permitted by applicable Law. Purchaser shall survive cause the Merger organizational documents of the Trayport Companies to contain provisions with respect to indemnification, advancement of expenses and shall continue limitation of director and officer liability that are no less favorable to the D&O Indemnified Persons with respect to acts or omission occurring at or prior to the Closing than those set forth in full force and effect the organizational documents of the Trayport Companies as of the date of this Agreement, which provisions thereafter shall, subject to applicable Law, not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any D&O Indemnified Persons for a period of not less than six (6) years from and after the Effective Time; provided that Closing. From and after the Closing, Purchaser shall cause the Trayport Companies to honor, in the event any claim or claims are asserted or made within such six-year periodaccordance with their respective terms, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any each of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by covenants contained in this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithSection 6.8.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (BGC Partners, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights From and after the Effective Time, Parent shall, and shall cause the Company or the Surviving Corporation (as the case may be) to, to indemnification now existing in favor of the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any employee, agent, director amendments to or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one replacements of the MeriStar Subsidiaries, or otherwise in effect on TBCA adopted after the date of this Agreement shall survive that increase the extent to which a corporation may indemnify its officers and directors), indemnify, defend and hold harmless (and advance expenses from time to time as incurred to the fullest extent permitted by Law, provided the Person to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA and provides statements and reasonable documentation therefor) the present and former directors and officers of the Company, any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) at the request of the Company (each an “Indemnified Party”) from and against any and all actual, documented costs or expenses (including reasonable attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement and the Merger and shall continue in full force the other Transactions or arising out of or pertaining to the Merger and effect for a period of not less than six years the other Transactions, whether asserted or claimed prior to, at or after the Effective Time; provided that in the event Person to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any claim or claims are asserted or applicable standard of conduct required by the TBCA has been met. Any determination required to be made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law, the Company Charter, the Company Bylaws or a written Contract between an Indemnified Party and omissions arising out the Company or one of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar its Subsidiaries, occurring prior to as the Effective Timecase may be, including shall be made by independent special legal counsel selected by the transactions contemplated by this Agreement. Without limiting the generality Board of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, Directors of the Surviving Corporation or a committee thereof in the manner prescribed by Section 00-00-000 of the TBCA, the fees of which counsel shall pay as incurred such Indemnified Party's legal and other expenses (including be paid by the cost of any investigation and preparation) incurred in connection therewithSurviving Corporation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fidelity National Financial, Inc.), Agreement and Plan of Merger (O Charleys Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent, Merger Sub and the Company agree that all rights to indemnification now and all limitations on liability existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries Indemnitee (the "Indemnified Parties"as hereinafter defined) as provided in their respective charters or bythe Company's Certificate of Incorporation, Company's By-laws, in an agreement between an Indemnified Party and MeriStar charter or one By-laws of any Subsidiary of the MeriStar SubsidiariesCompany or any Indemnity Agreement (as hereinafter defined) shall survive the Merger and continue in full force and effect to the fullest extent permitted by law. To the extent permitted by (i) the DGCL, or otherwise (ii) any agreement disclosed in Section 6.9 of the Company Disclosure Schedule which provides for indemnification by the Company or any Subsidiary of the Company of any Indemnitee in effect on the date of this Agreement (including any indemnity provisions contained in any agreement disclosed in Section 6.9 of the Company Disclosure Schedule which provides for the registration of securities) (each, an "Indemnity Agreement"), advancement of Indemnitee Expenses (as hereinafter defined) pursuant to this Section 6.9 shall survive be mandatory rather than permissive and the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify advance Costs (as hereinafter defined) in connection with such indemnification, in all Indemnified Parties such cases subject to receipt of any undertaking to repay required by the DGCL. Parent shall cause the Surviving Corporation to expressly assume at Closing and thereafter honor in accordance with their terms, to the fullest extent permitted by applicable law with under the DGCL, all Indemnity Agreements. With respect to all acts and omissions arising out any determination of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior whether an Indemnitee is entitled to the Effective Time, including the transactions contemplated indemnification by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation under this Section 6.9(a), the Indemnitee shall pay have the right, as incurred contemplated by the DGCL, to require that such Indemnified Party's determination be made by special, independent legal counsel selected by Indemnitee and other expenses approved by the Company (including which approval shall not be unreasonably withheld), and who has not otherwise performed material services for the cost Company or for Indemnitee within the last three (3) years. For the purposes of any investigation and preparationthis Section 6.9, (i) incurred in connection therewith."
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conagra Inc /De/), Agreement and Plan of Merger (International Home Foods Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees 8.6.1. The Buyer and the Acquired Companies agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Closing Date, that now existing exist in favor of any Person who prior to or on the Closing Date is or was a current or former director, officer or employee of an Acquired Company, or who at the request of an Acquired Company served prior to or on the Closing Date as a director, officer, member, manager, employee, agent, director trustee or officer fiduciary of MeriStar and the MeriStar Subsidiaries any other entity of any type (the "each a “D&O Indemnified Parties"Person”) as provided in their respective charters the Organizational Documents of an Acquired Company, or by-laws, in an any agreement between a D&O Indemnified Person and an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect Acquired Company set forth on the date of this Agreement shall Schedule 8.6.1 (an “Indemnity Agreement”) will survive the Merger Closing and shall will continue in full force and effect for a the six (6) year period of following the Closing Date. In furtherance (and not less than in limitation of) the foregoing, for the six years after (6) year period following the Effective Time; provided Closing Date, the Buyer will cause the Acquired Companies to, and the Acquired Companies will (i) not amend, repeal or otherwise modify in any manner that in would adversely affect the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect thereunder of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all D&O Indemnified Parties to Person the fullest extent permitted by applicable law provisions with respect to all acts indemnification, advancement of expenses and omissions arising out exculpation from liability in the Organizational Documents of such individuals' services as officers, directors, employees or agents of MeriStar or any each of the MeriStar Subsidiaries Acquired Companies and (ii) continue in existence each Indemnity Agreement without termination, revocation, amendment or as trustees or fiduciaries other modification that would adversely affect the rights thereunder of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such D&O Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithPerson.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Healthsouth Corp), Stock Purchase Agreement (Healthsouth Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Verizon agrees that all rights to indemnification now indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favour of each present and former director, officer or employee of Fleetmatics or any of its Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Fleetmatics or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the Merger consummation of the Scheme and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Effective Time, Verizon shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Fleetmatics and its Subsidiaries or in any agreement to which Fleetmatics or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of Fleetmatics or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided provided, however, that in the event any claim claim, action, suit proceeding or claims are investigation is pending, asserted or made either prior to the Effective Time or within such six-six year period, all rights to indemnification indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(a) in respect of any such claim or claims thereof shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewiththereof.
Appears in 2 contracts
Samples: Transaction Agreement (Fleetmatics Group PLC), www.verizon.com
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Holdco agrees that all rights to indemnification now indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favour of each present and former director, officer or employee of Warner Chilcott or any of its Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Warner Chilcott or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the Merger consummation of the Scheme and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Effective Time, Holdco shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Warner Chilcott and its Subsidiaries or in any agreement to which Warner Chilcott or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of Warner Chilcott or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided provided, however, that in the event any claim claim, action, suit proceeding or claims are investigation is pending, asserted or made either prior to the Effective Time or within such six-six year period, all rights to indemnification indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(a) in respect of any such claim or claims thereof shall continue until final disposition of any thereof. From and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to after the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality Holdco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Warner Chilcott and its Subsidiaries to honour, in accordance with their respective terms, each of the foregoing, covenants contained in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay Clause 7.3 without limit as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithto time.
Appears in 2 contracts
Samples: Agreement (Actavis, Inc.), Warner Chilcott PLC
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor From the Effective Time through the sixth anniversary of any employeethe date on which the Effective Time occurs, agentthe Surviving Corporation shall indemnify and hold harmless each present (as of the Effective Time) or former officer, director or officer employee of MeriStar the Company and the MeriStar its 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) as provided in their respective charters or by-laws, in an agreement between an the fact that the Indemnified Party and MeriStar is or one was an officer, director or employee of the MeriStar Subsidiaries, Company or otherwise in effect on any of its Subsidiaries or (ii) matters existing or occurring at or prior to the date of Effective Time (including this Agreement shall survive and the Merger Stockholder Agreement and shall continue in full force the transactions and effect for a period of not less than six years actions contemplated hereby and thereby), whether asserted or claimed prior to, at or after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by under applicable law with respect to all acts and omissions arising out of law; provided that no Indemnified Party may settle any such individuals' services as officers, directors, employees or agents of MeriStar or any claim without the prior approval of the MeriStar Subsidiaries Surviving Corporation (which approval shall not be unreasonably withheld or as trustees or fiduciaries delayed). Each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any plan for the benefit of employeesclaim, or otherwise on behalf ofaction, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any actionsuit, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, from the Surviving Corporation shall pay as incurred within ten 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, to the extent required by the DGCL, to repay such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithadvances if it is ultimately determined that such person is not entitled to indemnification.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Recapitalization (Blount Winton M), Agreement and Plan of Merger and Recapitalization (Blount International Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar From and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal (a) indemnify and other hold harmless, against any costs or expenses (including the cost of any investigation and preparation) attorney’s fees), judgments, fines, losses, claims, damages or liabilities incurred in connection therewithwith any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to, all past and present directors and officers of the Company (in all of their capacities) (the “Indemnified Persons”) to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company’s Constituent Documents and indemnification agreements, if any, in existence on the date hereof with any Indemnified Persons, (b) honor the provisions regarding elimination of liability of directors, indemnification of officers and directors and advancement of expenses contained in the Company’s Constituent Documents immediately prior to the Effective Time and (c) use reasonable best efforts to maintain for a period of six (6) years after the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (“D & O Insurance”) maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to claims arising from facts or events that occurred on or before the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby); and provided, further, that in no event shall the Surviving Corporation be required to expend in any one year more than 250% of the current annual premium expended by the Company and the Company Subsidiaries to maintain or procure such D & O Insurance immediately prior to the Effective Time (such 250% amount, the “Maximum Annual Premium”); provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall use reasonable best efforts to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. The obligations of the Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.8 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 6.8 applies shall be third party beneficiaries of this Section 6.8).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC From and after the Effective Time, Parent agrees that all rights it will indemnify and hold harmless, to indemnification now existing in favor of any employee, agent, director or officer of MeriStar the fullest extent permitted under applicable Law and the MeriStar Subsidiaries (Certificate of Incorporation and the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise Bylaws in effect on as of the date of this Agreement shall survive Agreement, each current or former director and officer of the Merger and shall continue Company (determined as of the Effective Time), in full force and effect for each case, when acting in such capacity or in serving as a period director, officer, member, trustee or fiduciary of not less than six years another entity or enterprise, including a Company Benefit Plan, at the request or benefit of the Company (collectively, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with, arising out of or otherwise related to any actual or alleged Proceeding, in connection with, arising out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including actions to enforce this provision or any other indemnification or advancement right of any D&O Indemnified Party, and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable Law and the Certificate of Incorporation and the Bylaws in effect as of the date of this Agreement; provided that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification. 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 event 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 claim or claims are asserted or made within such six-year period, provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Parties; provided that all rights to indemnification in respect of any claim made for indemnification within such claim or claims period shall continue until final the disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out action or resolution of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to claim. From and after the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoingParent shall guarantee and stand surety for, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, and shall cause the Surviving Corporation shall pay as incurred such Indemnified Party's legal to honor, all indemnification Contracts between any officer or director and other expenses (including the cost Company in effect prior to the date of any investigation and preparation) incurred in connection therewiththis Agreement that have been made available to Parent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Exact Sciences Corp), Agreement and Plan of Merger (Genomic Health Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to indemnification exculpation, indemnification, contribution and advancement of expenses for facts, events, acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of the current or former directors, officers or employees of (or in a comparable role with) the Company or its Subsidiaries, or any employeeperson serving at the request of the Company or any of its Subsidiaries as a director, agent, director officer or officer employee of MeriStar and the MeriStar Subsidiaries (or in a comparable role with) another Person (the "“D&O Indemnified Parties") ”), as the case may be, in each case, as provided in their the respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one organizational documents of the MeriStar Subsidiaries, Company or otherwise in effect on its Subsidiaries or any indemnification or similar agreements as of the date of this Agreement Agreement, shall survive the Merger and shall continue in full force and effect in accordance with their terms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall and shall cause the Surviving Corporation and its Subsidiaries to perform such obligations thereunder. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee (or comparable) liability that are no less favorable to the D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the date of this Agreement, which provisions thereafter shall not, for a period of not less than at least six (6) years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to from the Effective Time, including be amended, repealed or otherwise modified in any manner that would adversely affect the transactions contemplated by this Agreement. Without limiting the generality rights thereunder of the foregoing, in the event any such D&O Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated Parties except as required by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithapplicable Law.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Without limiting any additional rights that all rights to indemnification now existing in favor of any employee, agent, director employee may have under any employment agreement or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") Company Plan as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise 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, the Surviving Corporation shall 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 shall survive and the Merger transactions and shall continue in full force and effect for a period of not less than six years actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted under applicable Law (provided that such indemnification shall be subject to any limitation imposed from time to time 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 applicable law with respect 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 PaBCL, 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 acts and omissions liability arising out of such individuals' services as officersaction, directorssuit, employees proceeding, investigation or agents of MeriStar claim or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any actionotherwise consents, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, and (C) the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including cooperate in the cost defense of any investigation and preparation) incurred in connection therewithsuch matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tollgrade Communications Inc \Pa\)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees 8.6.1. The Buyer and the Acquired Companies agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Closing Date, that now existing exist in favor of any Person who prior to or on the Closing Date is or was a current or former director, officer or employee of an Acquired Company, or who at the request of an Acquired Company served prior to or on the Closing Date as a director, officer, member, manager, employee, agenttrustee or fiduciary of any other entity of any type (each a “D&O Indemnified Person”), director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") including as provided in their respective charters or by-lawsthe Organizational Documents of an Acquired Company, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall will survive the Merger Closing and shall will continue in full force and effect for a the six (6) year period of following the Closing Date. In furtherance (and not less than in limitation of) the foregoing, for the six years after (6) year period following the Effective Time; provided that Closing Date, the Buyer will cause the Acquired Companies to, and the Acquired Companies will continue to contain in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect Organizational Documents of any such claim or claims shall continue until final disposition each of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law Acquired Companies provisions with respect to all acts indemnification, advancement of expenses and omissions arising out of exculpation from liability that in each such individuals' services respect are at least as officersfavorable to each D&O Indemnified Person as those contained in each Acquired Company’s respective Organizational Documents, directorsas applicable, employees as in effect on the date hereof, which provisions will not be amended, repealed or agents of MeriStar or otherwise modified in any of manner that would adversely affect the MeriStar Subsidiaries or as trustees or fiduciaries rights thereunder of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such D&O Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithPerson.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carlisle Companies Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Merger Sub agree that all rights to indemnification indemnification, exculpation or advancement of expenses now existing in favor of, and all limitations on the personal Liability of any each present and former director, officer, employee, agentfiduciary, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one agent of the MeriStar Subsidiaries, or otherwise Company provided for in the Company’s Charter Documents in effect on as of the date of this Agreement shall survive the Merger and hereof, shall continue to be honored and in full force and effect for a period of not less than six (6) years after the Effective Time; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any claims asserted or made within such claim or claims period shall continue until final the disposition of any and all such claimsclaim. The Organizational Documents of the Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law will contain provisions with respect to all acts indemnification, exculpation from Liability and omissions arising out advancement of such individuals' services expenses that are at least as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or favorable as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, those currently provided in the event any Company’s certificate of incorporation and during such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, six (6) year period following the Effective Time, the Surviving Corporation shall pay not, and Parent shall cause the Surviving Corporation not to, amend, repeal or otherwise modify such provisions in any manner that would materially and adversely affect the rights thereunder of individuals who at or prior to the Effective Time were directors, officers, employees, fiduciaries, or agents of the Company in respect to actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by applicable Legal Requirements. From and after the Effective Time, Parent and the Surviving Corporation also agree, jointly and severally, to indemnify and hold harmless the present and former officers, directors, employees, fiduciaries and agents of the Company in respect of acts or omissions occurring prior to the Effective Time to the extent (i) provided in any written indemnification agreements in effect between the Company and such individuals or (ii) required by the Company’s Charter Documents, in each case as incurred such Indemnified Party's legal and other expenses (including in effect immediately prior to the cost of any investigation and preparation) incurred in connection therewithEffective Time.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for For a period of not less than six (6) consecutive years immediately after the Effective Time; provided that , unless otherwise required by applicable Law, the Parent shall cause its Certificate of Formation and Limited Liability Company Agreement and the Articles of Incorporation and By-Laws (or equivalent organizational documents) of the Parent Subsidiaries, including the Surviving Corporation, to contain provisions no less favorable with respect to the exculpation from personal liability and indemnification of and advancement of expenses to directors, officers and employees than are set forth in the event Company’s Articles of Incorporation and By-Laws (or equivalent organizational documents of the relevant Company Subsidiary) as in effect on the date hereof; provided, however, that if any claim or claims are asserted or made against any individual entitled to the protections of such provisions within such six-six (6) year period, all rights to indemnification in respect of any such claim or claims provisions shall continue not be modified until the final disposition of any and all such claims. The Parent shall cause the Surviving Corporation to indemnify and advance expenses to, and shall itself indemnify all and advance expenses as if it were the Surviving Corporation to, each present and former director, officer and employee and employee benefit plan fiduciary (each, an “Indemnified Parties Person”) of the Company or any of the Company Subsidiaries (including rights relating to advancement of expenses and indemnification rights to which such individuals are entitled because they are serving as a director, officer or employee of another entity at the request of the Company or any of the Company Subsidiaries) in respect of actions, omissions or events occurring prior to or on the Effective Time to the fullest extent permitted by applicable law with respect to all acts and omissions arising out provided in the Company’s Articles of such individuals' services as officers, directors, employees Incorporation or agents of MeriStar By-laws or any of the MeriStar Subsidiaries or as trustees or fiduciaries organizational documents of any plan for Company Subsidiary, as applicable, any indemnification agreement or under applicable Laws, in each case, as in effect on the benefit date of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoingpreceding sentence, in the event if any such Indemnified Party is or Person becomes involved in any capacity in any action, proceeding actual or investigation in connection with any matter, including the transactions contemplated threatened Proceeding covered by this Agreement, occurring at or after, Section 6.5 after the Effective Time, the Parent shall, or the Parent shall cause the Surviving Corporation shall pay as incurred Corporation, to the fullest extent permitted by applicable Law, to promptly advance to such Indemnified Party's Person his or her legal and or other expenses (including the cost of any investigation and preparation) preparation incurred in connection therewith), subject to such Indemnified Person providing the Parent with an undertaking to reimburse all amounts so advanced in the event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Person is not entitled thereto; provided, that such obligation on the part of the Parent shall cease after the sixth (6th) anniversary of the Effective Time except with respect to any Proceeding covered by this Section 6.5 made or filed on or prior to the sixth (6th) anniversary of the Effective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Midwest Air Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that From and after the Effective Date, BidCo shall cause the Company to assume all rights obligations of the Company and its subsidiaries in respect of exculpation, indemnification and advancement of expenses for each individual who on the Effective Date is, or at any time prior to indemnification now existing in favor of any employeethe Effective Date was, agent, a director or officer of MeriStar and the MeriStar Subsidiaries Company, or, while a director or officer of the Company, is or was a director or officer of its subsidiaries (the each, an "Indemnified PartiesParty") ), for acts or omissions occurring on or prior to the Effective Date as provided in their respective charters or by-laws, in an agreement between an Indemnified Party the Certificate of Incorporation and MeriStar or one Articles of the MeriStar Subsidiaries, or otherwise Association as in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for Agreement. For a period of not less than six (6) years after from the Effective Time; provided Date, the Company shall maintain, and BidCo shall cause the Company to maintain, provisions of the Certificate of Incorporation and Articles of Association with respect to limitation of liabilities of directors and indemnification and advancement of expenses of officers and directors of the Company that are no less favorable to the Indemnified Parties than are set forth in the event Certificate of Incorporation and Articles of Association as in effect on the date of this Agreement, and shall not prior to the expiration of such period amend, repeal or otherwise modify any claim or claims are asserted or made within such six-year periodprovisions in any manner that would adversely affect the rights thereunder of any Indemnified Party; provided, however, that all rights to indemnification in respect of any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a "Proceeding") made within such claim or claims six (6)-year period shall continue until final the disposition or resolution of such Proceeding in accordance with the Company's Certificate of Incorporation and Articles of Association. Anything to the contrary in this Section 6.11 notwithstanding, any Person to whom an advancement of expenses is provided in connection with a Proceeding shall be required to provide, as a condition to such advancement, an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification in connection with such Proceeding. In the event of any and all such claims. The Surviving Corporation Proceeding (x) neither BidCo nor Company shall indemnify all Indemnified Parties settle, compromise or consent to the fullest extent permitted entry of any judgment in any Proceeding in which indemnification could be sought by applicable law with respect to such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all acts and omissions liability arising out of such individuals' services as officersProceeding or such Indemnified Party otherwise consents in writing to such settlement, directors, employees compromise or agents of MeriStar or any of consent and (y) the MeriStar Subsidiaries or as trustees or fiduciaries Company shall cooperate in the defense of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreementsuch matter. Without limiting the generality of the foregoing, in In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party is under this Section 6.11, (i) the Company or becomes involved in any capacity in any actionBidCo shall have the right, proceeding or investigation in connection with any matterbut not the obligation, including to control the transactions contemplated by this Agreement, occurring at or after, defense thereof after the Effective TimeDate, (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Surviving Corporation Company shall pay as incurred such Indemnified Party's legal and other expenses (including elect to control the cost defense of any investigation such Proceeding, (iii) the Company shall advance all reasonable fees and preparationexpenses of any counsel retained by an Indemnified Party promptly after statements therefor are received, whether or not the Company shall elect to control the defense of any such Proceeding and (iv) incurred in connection therewithno Indemnified Party shall be liable for any settlement effected without his or her prior express written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that From and after the Effective Time the Surviving Entity shall, and Parent shall cause the Surviving Entity to, (i) indemnify and hold harmless, against any costs or expenses (including attorney’s fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to, all rights to indemnification now existing in favor past and present directors, officers and employees of any employee, agent, director or officer of MeriStar the Company and the MeriStar Company Subsidiaries (in all of their capacities) (A) to the "Indemnified Parties") same extent such persons are indemnified or have the right to advancement of expenses as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by the Merger Company pursuant to the Company’s Constituent Documents and shall continue indemnification agreements, if any, in full force existence on the date hereof with any directors, officers and effect for a period employees of not less than six years after the Effective Time; provided that in Company and the event any claim or claims are asserted or made within such six-year periodCompany Subsidiaries and (B) without limitation to clause (A), all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law Law, (ii) include and cause to be maintained in effect in the Surviving Entity’s (or any successor’s) certificate of incorporation and bylaws, the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the Company’s Constituent Documents and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (“D & O Insurance”) maintained by the Company (provided that the Surviving Entity (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to all claims arising from facts or events that occurred on or before the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any the consummation of the MeriStar Subsidiaries or as trustees or fiduciaries of transactions contemplated hereby); and provided, further, that in no event shall the Surviving Entity be required to expend in any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any one year more than 200% of the MeriStar Subsidiaries, occurring current annual premium expended by the Company and the Company Subsidiaries to maintain or procure such D & O Insurance immediately prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any Time (such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after200% amount, the Effective Time“Maximum Annual Premium”); provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation Entity shall pay be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. In addition, the Company may purchase a six-year “tail” prepaid policy prior to the Effective Time on terms and conditions no less advantageous to the insured than the existing D & O Insurance maintained by the Company; provided, that the amount paid by the Company shall not exceed six times the Maximum Annual Premium. If such “tail” prepaid policy has been obtained by the Company prior to the Closing, (i) the Surviving Entity shall not be obligated to maintain D & O Insurance as incurred described above, and (ii) the Surviving Entity shall, and Parent shall cause the Surviving Entity to, maintain such Indemnified Party's legal “tail” policy in full force and other expenses effect, for its full term, and continue to honor their respective obligations thereunder. The obligations of the Surviving Entity under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.8 applies without the consent of such affected indemnitee (including it being expressly agreed that the cost indemnitees to whom this Section 6.8 applies shall be third party beneficiaries of any investigation and preparation) incurred in connection therewiththis Section 6.8).
Appears in 1 contract
Samples: Agreement and Plan of Merger
Directors’ and Officers’ Indemnification and Insurance. (a) ASC MeriStar agrees that all rights to indemnification now existing in favor of any employeedirector, agentofficer, director employee or officer agent of MeriStar Interstate and the MeriStar Interstate Subsidiaries (the "Indemnified PartiesINDEMNIFIED PARTIES") as provided in their respective charters or by-lawscorporate governance documents, in an agreement between an Indemnified Party and MeriStar Interstate or one of the MeriStar Interstate Subsidiaries, or otherwise otherwise, in each case as in effect on the date of this Agreement Agreement, shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law Law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar Interstate or any of the MeriStar Interstate Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar Interstate or any of the MeriStar Interstate Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, after the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Meristar Hotels & Resorts Inc)
Directors’ and Officers’ Indemnification and Insurance. (aj) ASC agrees Parent and Merger Sub agree that all rights to indemnification indemnification, exculpation or advancement of expenses now existing in favor of, and all limitations on the personal Liability of any employee, agent, each present and former director or and officer of MeriStar and the MeriStar Subsidiaries Company provided for in the Company’s Charter Documents in effect as of the date hereof (the "Indemnified Parties") as provided in their respective charters or by-laws“Fiduciary Indemnitees”), in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue to be honored and in full force and effect effect, with respect to claims arising from acts, omissions, facts or events that occurred on or before the Effective Time, for a period of not less than six (6) years after the Effective Time; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any claims asserted or made within such claim or claims period shall continue until final the disposition of any and all such claimsclaim. The Organizational Documents of the Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law will contain provisions with respect to all acts indemnification, exculpation from Liability and omissions advancement of expenses, with respect to claims arising out of such individuals' services as officersfrom acts, directorsomissions, employees facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, that are at least as favorable as those currently provided in the event any Company’s certificate of incorporation and during such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, six (6) year period following the Effective Time, the Surviving Corporation shall pay not, and Parent shall cause the Surviving Corporation not to, amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of individuals who at or prior to the Effective Time were Fiduciary Indemnitees of the Company, with respect to claims arising from actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions 45 contemplated by this Agreement), unless such modification is required by applicable Legal Requirements. From and after the Effective Time, Parent and the Surviving Corporation also agree, jointly and severally, to indemnify and hold harmless the Fiduciary Indemnitees of the Company with respect to claims arising from acts or omissions occurring prior to the Effective Time to the extent (i) provided in any written indemnification agreements in effect between the Company and such individuals set forth on Part 4.2(a) of the Disclosure Schedule or (ii) required by the Company’s Charter Documents, in each case as incurred such Indemnified Party's legal and other expenses (including in effect immediately prior to the cost of any investigation and preparation) incurred in connection therewithEffective Time.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. The Surviving ------------------------------------------------------ Corporation shall, and Newco shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of OSI and its Subsidiaries (in all of their capacities) (a) ASC agrees that all rights to indemnification now existing in favor the same extent such persons are indemnified or have the right to advancement of any employee, agent, director or officer expenses as of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by OSI pursuant to OSI's certificate of incorporation, bylaws and indemnification agreements, if any, in existence on the Merger date hereof with any directors, officers and shall continue employees of OSI and its Subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in full force each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of not less than six years after the Effective Time; , the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the certificate of incorporation and bylaws of OSI and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by OSI (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time; provided, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing-------- however, that in the no event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, shall the Surviving Corporation be required to expend ------- in any one year an amount in excess of 200% of the annual premiums currently paid by OSI for such insurance. The obligations of the Surviving Corporation under this Section 5.8 shall pay not be terminated or modified in such a manner as incurred to adversely affect any indemnitees to whom this Section 5.8 applies without the consent of such Indemnified Party's legal and other expenses affected indemnitees (including it being expressly agreed that the cost indemnitees to whom this Section 5.8 applies shall be third party beneficiaries of any investigation and preparation) incurred in connection therewiththis Section 5.8).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC From and after the Effective Time, Parent shall cause the Surviving Corporation agrees that all rights it will indemnify and hold harmless each present and former director and officer of the Company or any of its subsidiaries (in each case, when acting in such capacity) (the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”), arising out of, relating to indemnification now or in connection with matters existing in favor of any employee, agent, or occurring at or prior to the Effective Time (including the fact that such Person is or was a director or officer of MeriStar the Company or any of its subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware Law and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party its Certificate of Incorporation and MeriStar or one of the MeriStar Subsidiaries, or otherwise Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent or the Surviving Corporation shall survive advance expenses (including reasonable legal fees and expenses) incurred in the Merger and shall continue defense of any Proceeding, including any expenses incurred in full force and effect for a period of not less than six years after the Effective Timesuccessfully enforcing such Person’s rights under this Section 6.10; provided that in the 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 pursuant to this Section 6.10); 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 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 any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Proceeding (x) neither Parent nor the Surviving Corporation shall indemnify all Indemnified Parties settle, compromise or consent to the fullest extent permitted entry of any judgment in any Proceeding in which indemnification has been sought by applicable law with respect to such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all acts and omissions liability arising out of such individuals' services as officersProceeding or such Indemnified Party otherwise consents (which consent shall not be unreasonably withheld), directors, employees or agents of MeriStar or any of (y) the MeriStar Subsidiaries or as trustees or fiduciaries Surviving Corporation shall reasonably cooperate with the Indemnified Party in the defense of any plan for such matter and (z) the benefit of employeesIndemnified Party shall not settle, compromise or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior consent to the Effective Time, including entry of any judgment in any Proceeding in which indemnification has been sought by such Indemnified Party hereunder without the transactions contemplated by this Agreementprior written consent of Parent or the Surviving Corporation (which consent shall not be unreasonably withheld). Without limiting the generality of the foregoing, in In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party is or becomes involved in any capacity in any actionunder this Section 6.10, proceeding or investigation in connection with any matter(i) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time (it being understood that, including by electing to control the transactions contemplated by this Agreement, occurring at or afterdefense thereof, the Effective TimeSurviving Corporation will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto), (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Surviving Corporation shall elect to control the defense of any such Proceeding, (iii) the Surviving Corporation shall pay as incurred such Indemnified Party's legal all reasonable fees and other expenses (including the cost of any investigation counsel retained by an Indemnified Party promptly after statements therefor are received, if the Surviving Corporation shall elect to control the defense of any such Proceeding, and preparation(iv) incurred except as provided in connection therewiththe immediately preceding sentence, no Indemnified Party shall be liable for any settlement effected without his or her prior express written consent; provided that for purposes of clauses (ii) and (iii) the Indemnified Party on behalf of whom fees and expenses are paid provides an undertaking to repay such fees and expenses if it is ultimately determined that such Person is not entitled to indemnification pursuant to this Section 6.10).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Team Health Holdings Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Buyer and Merger Sub agree that all rights to indemnification indemnification, reimbursement, contribution, advancement of expenses or exculpation now existing in favor of, and all limitations on the personal liability of any each present and former director, officer, employee, agentfiduciary, director or officer agent of MeriStar Seller and its Subsidiaries and all other covered persons provided for in the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-lawsorganizational documents, in an agreement between an Indemnified Party and MeriStar or one effect as of the MeriStar Subsidiariesdate hereof, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue to be honored and in full force and effect for a period of not less than six (6) years after the Effective TimeTime (and if any statute is amended to provide for benefits that are more favourable to such Persons, then such Persons shall be entitled to the benefits of such amendment); provided provided, however, that all rights to indemnification, reimbursement, contribution, advancement of expenses or exculpation in the event respect of any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims period shall continue until final the disposition of any and all such claimsclaim. The During such period, Buyer shall not directly or indirectly through the Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officersor otherwise, directorsamend, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, repeal or otherwise on behalf ofmodify such provisions for indemnification, MeriStar reimbursement, contribution, advancement of expenses or exculpation in any manner that would adversely affect the rights thereunder of the MeriStar Subsidiaries, occurring individuals who at any time at or prior to the Effective TimeTime was a director, including officer, employee, fiduciary, or agent of Seller and its Subsidiaries or any other covered person in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law. Without limiting the generality of the foregoingIn addition, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, from and after the Effective Time, the Buyer and Surviving Corporation shall pay as incurred indemnify and hold harmless the present and former officers and directors of Seller and its Subsidiaries and all other covered persons pursuant to, and otherwise comply with, the terms of the written indemnification agreements between Seller and/or one or more of its Subsidiaries and such Indemnified Party's legal officers and other expenses (including directors and listed in Section 6.7 of the cost of any investigation and preparation) incurred in connection therewithSeller Disclosure Schedule.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. The Surviving Corporation shall, and Pfizer shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of Xxxxxx-Xxxxxxx and its Subsidiaries (in all of their capacities) (a) ASC agrees that all rights to indemnification now existing in favor the same extent such persons are indemnified or have the right to advancement of any employee, agent, director or officer expenses as of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive by Xxxxxx-Xxxxxxx pursuant to Xxxxxx-Xxxxxxx'x certificate of incorporation, bylaws and indemnification agreements, if any, in existence on the Merger date hereof with any directors, officers and shall continue employees of Xxxxxx-Xxxxxxx and its Subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in full force each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of not less than six years after the Effective Time; , the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the certificate of incorporation and bylaws of Xxxxxx-Xxxxxxx and (iii) cause to be maintained for a period of six years after the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Xxxxxx-Xxxxxxx (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the event any claim or claims are asserted or made within such six-year periodaggregate, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties no less advantageous to the fullest extent permitted by applicable law insured) with respect to all acts and omissions claims arising out of such individuals' services as officers, directors, employees from facts or agents of MeriStar events that occurred on or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to before the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality The obligations of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation under this Section 5.8 shall pay not be terminated or modified in such a manner as incurred to adversely affect any indemnitee to whom this Section 5.8 applies without the consent of such Indemnified Party's legal and other expenses affected indemnitee (including it being expressly agreed that the cost indemnitees to whom this Section 5.8 applies shall be third party beneficiaries of any investigation and preparation) incurred in connection therewith.this Section 5.8). 5.9
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent, Acquisition Sub and Acquisition Sub 2 agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of any employeethe current or former directors, agentofficers, director managers, or officer employees, as the case may be, of MeriStar and the MeriStar Company, its Subsidiaries or the Company External Adviser (to the "extent related to the management of the Company) (collectively, the “D&O Indemnified Parties") ”), as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise organizational documents as in effect on the date of this Agreement or in any Contract disclosed or made available to Parent prior to the date hereof shall survive the Merger Mergers and shall continue in full force and effect for a period of not less than six years after in accordance with their terms. Parent shall indemnify, defend and hold harmless, and advance expenses to the D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective TimeTime (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent permitted by Applicable Law as required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement; provided provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any action pending or asserted or any claim made within such claim or claims period shall continue until final the disposition of such action or resolution of such claim. For a period of six years following the Effective Time, Parent shall cause the Surviving Corporation’s (and any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties of its successors’) certificate of incorporation, bylaws or other organizational documents to the fullest extent permitted by applicable law contain provisions with respect to all acts indemnification, advancement of expenses and omissions arising out limitation of such individuals' services as officersdirector, directors, employees or agents of MeriStar or any of officer and employee liability with respect to the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for D&O Indemnified Parties and the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring period prior to the Effective Time, including Time that are no less favorable to the transactions contemplated by this Agreement. Without limiting D&O Indemnified Parties than those set forth in the generality Company’s and its Subsidiaries’ organizational documents as of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by date of this Agreement, occurring at which provisions thereafter shall not be amended, repealed or after, otherwise modified in any manner that would adversely affect the Effective Time, rights thereunder of the Surviving Corporation shall pay as incurred such D&O Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithParties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Crescent Capital BDC, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights The certificate of incorporation and by-laws or other constituent documents of the Companies, the Company Subsidiaries, Interco, Holdco and Newco shall continue to indemnification now existing contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors, officers and employees than are presently set forth in favor the applicable company's certificate of any employee, agent, director or officer of MeriStar incorporation and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiarieswhich provisions shall not be amended, repealed or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect modified for a period of six years from the Closing Date in any manner that would adversely affect the rights thereunder of any such individuals. Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any present (as of the Closing Date) and former officer, director or employee of the Companies, the Company Subsidiaries, Interco, Holdco and Newco (an "Indemnified Director or Officer"), on or prior to the sixth anniversary of the Closing Date, the provisions of this Section 5.5 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Directors and Officers and their respective heirs and legal representatives. The indemnification provided for herein shall not less than six be deemed exclusive of any other rights to which an Indemnified Director or Officer is entitled, whether pursuant to Law, contract or otherwise. Books and Records . Purchaser shall retain all of the books and records of the Companies, the Company Subsidiaries and the Canadian Parks Business for a period of seven years after the Effective Time; provided Closing or such longer time as may be required by Law and, subject to restrictions imposed from time to time in good faith upon advice of counsel respecting the provision of privileged communications or competitively sensitive information and any applicable confidentiality agreement with any Person, shall provide, only in such manner that in does not unreasonably interfere with the event business of the Companies or any claim Company Subsidiary or claims are asserted the Canadian Parks Business, reasonable access to such pre-Closing books and records (or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties copies thereof at Seller's expense) to the fullest extent permitted by applicable law with respect to all acts Seller or its agents, at reasonable times and omissions arising out of such individuals' services as officersupon reasonable notice, directors, employees or agents of MeriStar or any of after the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior Closing to the Effective Timeextent reasonably necessary for legitimate business reasons, including such as disputing any indemnification claim, the preparation of financial statements, Tax returns, the defense of litigation or Tax audits or complying with other legal requirements. Public Announcements . Each of Seller and Purchaser agrees that no public release or announcement concerning the transactions contemplated by this Agreement. Without limiting Agreement shall be issued by any party or any of its Affiliates without the generality prior written consent of Seller and Purchaser (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by Law or the rules or regulations of any applicable United States securities exchange, in which case the party required to make the release or announcement shall use its reasonable best efforts to allow each other party reasonable time to comment on such release or announcement in advance of such issuance, it being understood that the final form and content of any such release or announcement, to the extent so required, shall be at the final discretion of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithdisclosing party.
Appears in 1 contract
Samples: Purchase Agreement (Cedar Fair L P)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC ListCo agrees that all rights to indemnification now indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement in favor of each present and former director, officer or employee of Willow or any of its Subsidiaries provided for in their respective Organizational Documents or in any agreement to which Willow or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Merger Effective Time (including actions or omissions occurring at or prior to the Merger Effective Time arising out of the Transaction) shall survive the Merger consummation of the Transaction and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Merger Effective Time, ListCo shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organizational Documents of Willow and its Subsidiaries or in any agreement to which Willow or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Merger Effective Time were directors, officers or employees of Willow or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Merger Effective Time (including actions or omissions occurring at or prior to the Merger Effective Time arising out of the Transaction); provided provided, however, that in the event any claim claim, action, suit, proceeding or claims are investigation is pending, asserted or made either prior to the Merger Effective Time or within such six-year six (6)-year period, all rights to indemnification indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(a) in respect of any such claim or claims thereof shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewiththereof.
Appears in 1 contract
Samples: Transaction Agreement (WestRock Co)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar 7.9.1. From and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims Parent shall continue until final disposition of any indemnify, defend and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employeeshold harmless each person who is now, or otherwise on behalf of, MeriStar who has been at any time before the date hereof or any of the MeriStar Subsidiaries, occurring prior to who becomes before the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality an officer, director or employee of the foregoingCompany or a Company 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 event any such Indemnified Party is prior written consent of Parent, which consent shall not be unreasonably withheld) of or becomes involved in any capacity in any action, proceeding or investigation in connection with any matterclaim, including 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 the fact that such person is or was a director, officer or employee of the Company or a Company Subsidiary or served at the request of such party as a director, officer, employee, trustee, manager or partner of another corporation, partnership, trust, joint venture, employee benefit plan or other entity if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including, without limitation, the Merger and the other transactions contemplated by this Agreementhereby), occurring at regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, to the Surviving Corporation fullest extent as would have been permitted by the Company under the LBCA and under the Company’s articles of incorporation and bylaws or equivalent governing documents of any Company Subsidiary, as applicable, in each case as in effect on the date hereof. Parent shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as incurred would have been permitted by the Company under the LBCA and under the Company’s articles of incorporation and bylaws upon receipt of an undertaking to repay such advance payments if such Indemnified Party's legal and other expenses (including Party shall be adjudicated or determined to be not entitled to indemnification in the cost manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.9.1 upon learning of any investigation Claim, shall notify Parent (but the failure so to notify Parent 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 Parent) and preparation) incurred shall deliver to Parent the undertaking referred to in connection therewiththe previous sentence. Without limiting the foregoing, in any case in which approval by Parent, one of its Subsidiaries or the board of directors thereof is required 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 Parent and the Indemnified Party. Nothing contained in Section 7.9 or any other provision of this Agreement shall limit any right to indemnification which any current or former director, officer, employee or agent of the Company may have under applicable law or regulation or Company’s articles of incorporation, bylaws or the equivalent documents of any Subsidiary of the Company, as applicable, in each case as in effect on the date hereof, which Parent agrees to honor in accordance with their terms.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that The Final Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Final Surviving Corporation and its Subsidiaries to) honor and fulfill in all rights to indemnification now existing in favor of any employee, agent, director or officer of MeriStar and respects the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one obligations of the MeriStar Subsidiaries, Company and its Subsidiaries under the certificate of incorporation and bylaws (or otherwise other similar organizational documents) of the Company and its Subsidiaries as in effect on the date hereof and any and all agreements for indemnification, exculpation of this Agreement shall survive liability and/or advance of expenses in effect as of the Merger date hereof between the Company or any of its Subsidiaries and shall continue in full force any of their respective current or former directors and effect officers and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (the “Indemnified Parties”). In addition, for a period of not less than six (6) years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, following the Effective Time, the Final Surviving Corporation and its Subsidiaries shall pay as incurred such Indemnified Party's legal (and Parent shall cause the Final Surviving Corporation and its Subsidiaries to) cause the certificate of formation (and other similar organizational documents) of the Final Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, exculpation from liability and the advancement of expenses that are at least as favorable as the indemnification, exculpation from liability and advancement of expense provisions set forth in the certificate of incorporation and bylaws (including or other similar organizational documents) of the cost Company and its Subsidiaries as of the date hereof, and during such six (6) year period, such provisions shall not be amended, repealed or otherwise modified in any investigation and preparation) incurred in connection therewithmanner that would adversely affect the rights thereunder of individuals who were covered by such provisions, except as required by applicable Law or Order.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Td Ameritrade Holding Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent, Holdco, Rooster Merger Sub and Parent Merger Sub agree that all rights to indemnification indemnification, advancement of expenses, and exculpation by the Company now existing in favor of each Person who is now, or has been at any employee, agent, time prior to the date of this Agreement or who becomes prior to the Effective Time an officer or director of the Company or officer any of MeriStar and the MeriStar its Subsidiaries (the "each an “Indemnified Parties"Party”) as provided in their respective charters or by-lawsthe Governing Documents of the Company, in an agreement between an Indemnified Party and MeriStar or one each case as in effect on the date of the MeriStar Subsidiariesthis Agreement, or otherwise pursuant to any other Contracts in effect on the date of this Agreement and disclosed in Section 5.10 of the Company Disclosure Letter, including provisions relating to the advancement of expenses incurred in the defense of any Legal Action, shall be assumed by the Rooster Surviving Corporation in the Rooster Merger, without further action, at the Effective Time and shall survive the Merger Rooster Mergers and shall continue remain in full force and effect for in accordance with their terms. For a period of not less than six (6) years after from the Effective Time, the Rooster Surviving Corporation shall, and Holdco and the Parent Surviving Corporation shall cause the Rooster Surviving Corporation to, maintain in effect the exculpation, indemnification, and advancement of expenses equivalent to the provisions of the Governing Documents of the Company as in effect immediately prior to the Effective Time with respect to acts or omissions by any Indemnified Party occurring prior to the Effective Time, and shall not amend, repeal, or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any Indemnified Party; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any claim made for indemnification within such claim or claims period shall continue until final the disposition of such action or resolution of such claim. During such period, Holdco shall guarantee the obligations of the Rooster Surviving Corporation with respect to any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by amounts payable under this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithSection 5.10.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NRC Group Holdings Corp.)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Parent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of the current or former directors and officers, if any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "foregoing persons, the “D&O Indemnified Parties") ”), as the case may be, of the Company or its Subsidiaries as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise organizational documents as in effect on the date of this Agreement or in any Contract for indemnification in effect as of the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time; provided that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claimseffect. The Surviving Corporation shall indemnify all (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to D&O Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and or omissions arising out of by them in their capacities as such individuals' services as officers, directors, employees or agents of MeriStar or at any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring time prior to the Effective Time, Time (including any matters arising in connection with this Agreement or the transactions contemplated by this Agreement. Without limiting ), to the generality fullest extent that the Company or its Subsidiaries would be permitted by applicable Law and to the fullest extent required by the organizational documents of the foregoingCompany or its Subsidiaries as in effect on the date of this Agreement. Parent shall cause the certificate of incorporation, by-laws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director and officer liability that are no less favorable to the D&O Indemnified Parties than those set forth in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including Company’s and its Subsidiaries’ organizational documents as of the transactions contemplated by date of this Agreement, occurring at or afterwhich provisions thereafter shall not, for a period of six (6) years from the Effective Time, be amended, repealed or otherwise modified in any manner that would adversely affect the Surviving Corporation shall pay as incurred such rights thereunder of the D&O Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithParties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC BidCo agrees that all the rights to indemnification now indemnification, assistance, advancement of expenses or exculpation (including, if applicable, limitations on personal liability) existing in favor as of any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise in effect on the date of this Agreement agreement in favour of the IFG Directors pursuant to the articles of association of IFG in respect of actions or omissions occurring at or prior to the Effective Date (including actions or omissions occurring at or prior to the Effective Date arising out of the transactions contemplated by this agreement and/or the Acquisition) (the “Existing Provisions”) shall survive the Merger consummation of the Acquisition and shall continue in full force and effect for in accordance with their terms. For a period of not less than six (6) years after the Effective TimeDate, BidCo shall procure that no repeal of or amendment to any of the Existing Provisions shall be made which would adversely affect the rights thereunder of any IFG Directors in respect of actions or omissions occurring at or prior to the Effective Date (including actions or omissions occurring at or prior to the Effective Date arising out of the transactions contemplated by this agreement); provided provided, however, that in the event if any claim claim, action, suit, proceeding, enquiry or claims are investigation is pending, asserted or made either prior to the Effective Date or within such six-six year period, all rights to indemnification required to be continued pursuant to this Clause 7.2 in respect thereof shall continue until disposition thereof (save where there has been fraud or criminality on the part of an IFG Director). Save where there has been fraud, fraudulent misrepresentation or criminality on the part of an IFG Director, Bidco undertakes not to, and shall procure that no member of the Epiris Group shall, bring any claim, action, suit or proceedings against any IFG Director in respect of any such claim anything said, done or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties omitted to the fullest extent permitted have been said or done by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries them in his capacity as an IFG Director on or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective TimeDate. On or prior to the Effective Date IFG shall put in place, including with respect to matters arising on or before the transactions contemplated Effective Date, and with a cover duration of six years commencing on the Effective Date, run-off directors' and officers' liability insurance with coverage at least equal to the coverage provided by the directors' and officers' liability insurance policy in effect at the date of this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, With effect from the Effective TimeDate, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.BidCo:
Appears in 1 contract
Samples: Agreement
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that For the period of six (6) years following the Effective Time, Purchaser shall (and shall cause the Surviving Corporation and the Company Subsidiaries to) continue in full force and effect all rights to indemnification now existing in favor and exculpation and related rights to advancement of any employeeexpenses on the part of each person who at the Effective Time is a current or former director, agent, director officer or officer limited liability company manager of MeriStar and the MeriStar Company or the Company Subsidiaries (collectively, the "“Indemnified Parties") as provided in their respective charters Directors or by-lawsOfficers”), in an agreement between an Indemnified Party and MeriStar or one including all such rights existing pursuant to the DGCL, the Organizational Documents of the MeriStar Company or the Company Subsidiaries, or otherwise any written agreement between any Indemnified Director or Officer and the Company or the Company Subsidiaries in effect on the date of this Agreement and set forth on Section 6.9 of the Disclosure Schedule. Purchaser also shall survive the Merger (and shall continue cause the Surviving Corporation and the Company Subsidiaries to), to the fullest extent permitted under applicable Law, indemnify and hold harmless each of the Indemnified Director or Officers against any and all Losses in full force and effect for a period connection with any investigation or Proceeding, whether civil, criminal, administrative or investigative, arising out of not less than six years after or pertaining to any actual or alleged acts or omissions prior to the Effective Time occurring in connection with or arising out of such Indemnified Director or Officer’s service, prior to the Effective Time, as directors, officers or managers of the Company or the Company Subsidiaries, as applicable, or as trustees, fiduciaries or administrators of any plan for the benefit of employees of the Company or the Company Subsidiaries (each, a “Covered Proceeding”); provided that in the event if any claim or claims are asserted or made Covered Proceeding is commenced within such six-year time period, all rights to indemnification in respect of any such claim or claims Covered Proceeding shall continue until final disposition of such Covered Proceeding. In the event that any Indemnified Director or Officer is named in or otherwise becomes involved in a Covered Proceeding, Purchaser shall (and all such claims. The shall cause the Surviving Corporation shall indemnify all Indemnified Parties and the Company Subsidiaries to), to the fullest extent permitted by under applicable law with respect to all acts and omissions arising out Law, pay, as incurred, within twenty (20) Business Days after receipt of such individuals' services as officersIndemnified Director or Officer’s request and statement therefor from time to time, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is Director or becomes involved in any capacity in any actionOfficer’s reasonable, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal out-of-pocket and documented fees and other expenses (of counsel selected by such Indemnified Director or Officer incurred in connection therewith, including the cost of any investigation investigation, preparation and preparationsettlement; provided, however, that such payments need not be made unless Purchaser shall have received an undertaking from such Indemnified Director or Officer to repay in full such amount to Purchaser (or the Surviving Corporation or the Company Subsidiaries) incurred if it is determined by a court of competent jurisdiction, in a final order or decree not subject to further appeal, that none of Purchaser, the Surviving Corporation or the Company Subsidiaries is legally permitted to indemnify such Indemnified Director or Officer under applicable Law and provided, further, that none of Purchaser, the Surviving Corporation or the Company Subsidiaries, in connection therewithwith any one such Covered Proceeding or separate but substantially similar Covered Proceedings arising out of the same general allegations, shall be liable for reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified persons except to the extent that an Indemnified Director or Officer has been advised by counsel that there are conflicting interests between it and any other Indemnified Director or Officer(s). Purchaser shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by any Indemnified Director or Officer in enforcing the indemnity and other obligations provided for in this Section 6.9. Purchaser shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by and Indemnified Director or Officer in enforcing the indemnity and other obligations provided for in this Section 6.9.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Parent agrees that all rights to indemnification now existing in favor and related rights to advancement of any employee, agent, expenses on the part of each person who at the Effective Time is a current or former director or officer of MeriStar the Company, including all such rights existing pursuant to the DGCL, the Company's Certificate of Incorporation or Bylaws or any written agreement between any such person and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise Company in effect on the date of this Agreement Agreement, shall survive the Merger and shall continue in full force and effect for a period until 180 days after the expiration of not less than six years the longest applicable statute of limitations. Parent also agrees that from and after the Effective Time; provided that in Time it shall (and shall cause the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and Surviving Corporation to) indemnify all such claims. The Surviving Corporation shall indemnify all Indemnified Parties persons to the fullest extent permitted by applicable law with respect to all actual or alleged acts and or omissions prior to the Effective Time occurring in connection with or arising out of such individuals' services service as officers, directors, employees officers or agents directors of MeriStar the Company or any of the MeriStar Company Subsidiaries or as trustees trustees, fiduciaries or fiduciaries administrators of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any employees of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this AgreementCompany. Without limiting the generality limitation of the foregoing, in the event any such Indemnified Party person is or becomes involved in any such capacity in any action, proceeding or investigation (other than in connection with a proceeding initiated by such person), in connection with any actual or alleged action, inaction, state of affairs or other matter, including including, without limitation, any matter related to the transactions contemplated by this Agreement, occurring at on or after, prior to the Effective Time, Parent shall (or shall cause the Surviving Corporation shall pay to) pay, as incurred incurred, within ten business days after receipt of such Indemnified Partyperson's legal request and statement therefor from time to time, such person's reasonable fees and other expenses (of counsel selected by such person incurred in connection therewith, including the cost of any investigation investigation, preparation and preparation) incurred settlement; provided, however, that such payments need not be made unless Parent shall have received an undertaking from such person to repay such amount to Parent if it is determined by a court of competent jurisdiction, in a final order or decree not subject to further appeal, that neither Parent nor the Surviving Corporation is legally permitted to indemnify such person under applicable law, and provided, further, that neither Parent nor the Surviving Corporation shall, in connection therewithwith any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified persons. Parent shall be entitled to participate in the defense of any such action or proceeding, and counsel for the indemnified person shall, to the extent consistent with their professional responsibilities, cooperate with Parent and any counsel designated by Parent. Parent shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by any indemnified person in enforcing the indemnity and other obligations provided for in this Section.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Trover Solutions Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees that From and after the Acquisition Effective Time, the Surviving Entity and its Subsidiaries shall, and WPG shall cause the Surviving Company and its Subsidiaries to, (i) honor and maintain in effect for a period of six years from the Acquisition Effective Time all rights to exculpation, indemnification now existing in favor and advancement of any employee, agent, director or officer expenses of MeriStar each Indemnitee provided to such Indemnitee by Glimcher and the MeriStar Glimcher Subsidiaries immediately prior to the Acquisition Effective Time in the Glimcher Declaration of Trust and the Glimcher Bylaws or each of the Glimcher Subsidiaries’ respective articles, certificates of incorporation, declaration of trust or bylaws (the "Indemnified Parties"or comparable organizational or governing documents) as provided in their respective charters or by-lawsthe case may be, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, or otherwise as in effect on the date of this Agreement shall survive and (ii) honor all rights to exculpation, indemnification and advancement of expenses of each Indemnitee as provided in any indemnification or other agreement to which Glimcher or any Glimcher Subsidiary is a party as of the Merger and shall continue in full force and effect for a period date of not less than six years after the Effective Timethis Agreement; provided that in the event any claim such exculpation, indemnification and advancement of expenses covers actions or claims are asserted omissions at or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Partnership Merger Effective Time, including the all transactions contemplated by this Agreement. Without limiting WPG further agrees that it shall not, and shall cause the generality Surviving Entity and its Subsidiaries not to, amend, repeal or otherwise modify any of the foregoing, in the event any such Indemnified Party is or becomes involved foregoing provisions in any capacity manner that would adversely affect the rights thereunder of the Indemnitees and that all rights to exculpation, indemnification and advancement of expenses in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost respect of any investigation and preparation) incurred in connection therewithAction pending or asserted or any claim made within such period shall continue until the final disposition of such Action.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Glimcher Realty Trust)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees For a period of not less than six (6) consecutive years immediately after the Effective Time, unless otherwise required by applicable Law, the Parent shall cause the articles of incorporation or bylaws or equivalent organizational documents of the Surviving Corporation to contain provisions no less favorable with respect to the exculpation from personal liability and indemnification of and advancement of expenses to directors, officers and employees than are set forth in the Company Articles of Incorporation and Company By-Laws (or equivalent organizational documents of the relevant Company Subsidiary) as in effect on the date hereof; provided, however, that all if any claim or claims are asserted against any individual entitled to the protections of such provisions within such six (6) year period, such provisions shall not be modified until the final disposition of any such claims. The Parent shall cause the Surviving Corporation to indemnify and advance expenses to each present and former director, officer and employee and employee benefit plan fiduciary (each, an “Indemnified Person”) of the Company or any of the Company Subsidiaries (including rights relating to advancement of expenses and indemnification rights to indemnification now existing which such individuals are entitled because they are serving as a director, officer or employee of another entity at the request of the Company or any of the Company Subsidiaries) in favor respect of actions, omissions or events occurring prior to or on the Effective Time to the fullest extent provided in the Company Articles of Incorporation or Company By-laws or the organizational documents of any employeeCompany Subsidiary, agentas applicable, director any indemnification agreement or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-lawsunder applicable Laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiarieseach case, or otherwise as in effect on the date of this Agreement (it being understood that, notwithstanding the foregoing, in no event shall survive the Merger and shall continue in full force and effect for a period of not indemnification provided by the Surviving Corporation be less than six years the indemnification permitted by the applicable Laws then in effect). Without limiting the generality of the preceding sentence, if any Indemnified Person becomes involved in any actual or threatened Proceeding covered by this Section 6.6 after the Effective Time; provided that in , the event any claim Parent shall, or claims are asserted or made within such six-year periodthe Parent shall cause the Surviving Corporation, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect Law, to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of MeriStar or any of the MeriStar Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior promptly advance to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in the event any such Indemnified Party is Person his or becomes involved in any capacity in any action, proceeding her legal or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) preparation incurred in connection therewith), subject to such Indemnified Person providing the Parent with an undertaking to reimburse all amounts so advanced in the event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Person is not entitled thereto; provided, that such obligation on the part of the Parent shall cease after the sixth (6th) anniversary of the Effective Time except with respect to any Proceeding covered by this Section 6.6 made or filed on or prior to the sixth (6th) anniversary of the Effective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Renaissance Learning Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC agrees Xxxxxx and Purchaser acknowledge that all rights to indemnification or exculpation now existing in favor of any employeethe directors, agentofficers, director or officer employees and agents of MeriStar the Company and the MeriStar its Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and MeriStar or one of the MeriStar Subsidiaries, Bylaws or otherwise in effect on as of the date of this Agreement hereof with respect to matters occurring prior to the Effective Time shall survive the Merger and shall continue in full force and effect for a period of not less than six years after effect. After the Effective Time; provided that in , Xxxxxx shall, or shall cause the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation shall indemnify all Indemnified Parties to to, indemnify, defend and hold harmless the fullest extent permitted by applicable law with respect to all acts present and omissions arising out of such individuals' services as former officers, directors, employees or and agents of MeriStar the Company and its Subsidiaries (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 Xxxxxx or the Surviving Corporation)) arising out of actions or omissions occurring at or prior to the Effective Time to the full extent permitted under Utah law, the Company's Articles of Incorporation or Bylaws, in each case as in effect at the date hereof, including provisions therein relating to the advancement of expenses incurred in the defense of any action or suit; PROVIDED, that nothing herein shall impair any rights or obligations of any present or former directors or officers of the MeriStar Subsidiaries Company. (b) Xxxxxx shall cause the Surviving Corporation to maintain in effect for not fewer than six years from and after the Effective Time the policies of directors' and officers' liability insurance most recently maintained by the Company (provided that Xxxxxx may cause the Surviving Corporation to substitute therefor policies with reputable and financially sound carriers of at least the same coverage and containing terms and conditions no less advantageous as long as such substitution does not result in gaps or as trustees lapses in coverage with respect to claims arising from or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, related to matters occurring prior to the Effective Time, including ); PROVIDED that in no event shall the transactions contemplated by this Agreement. Without limiting the generality Surviving Corporation be required to expend more than an amount per year equal to 150% of the foregoingcurrent annual premiums paid by the Company (the "Premium Amount") to maintain or procure insurance coverage pursuant to this Section 7.1(b); PROVIDED, FURTHER, that if the Surviving Corporation is unable to obtain the insurance called for this Section 7.1(b), Xxxxxx shall cause the Surviving Corporation to obtain as much comparable insurance as is available for the Premium Amount per year. (c) Xxxxxx shall, or shall cause the Surviving Corporation to, pay all expenses (including reasonable attorneys' fees that may reasonably be incurred by the Indemnified Party in successfully enforcing the event any such rights to which the Indemnified Party is entitled under this Agreement or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Corporation Corporation's Articles of Incorporation or Bylaws or is otherwise entitled. (d) In the event the Surviving Corporation, Xxxxxx or any of their successors or assigns (i) consolidates with or merges into any other person and shall pay as incurred not be the continuing or surviving corporation or entity of such Indemnified Party's legal consolidation or merger or (ii) transfers all or substantially all of its properties and other expenses (including the cost of assets to any investigation person, then, and preparation) incurred in connection therewith.each such case, proper provisions shall be made so that A-23
Appears in 1 contract
Samples: Agreement and Plan of Merger (Research Medical Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Acquiror agrees that all rights to indemnification now and related rights to advancement of expenses on the part of each person who at the Effective Time is a current or former director, officer, employee or agent of Target or any Target Related Business, including all such rights existing in favor of pursuant to any employee, agent, director or officer of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as provided in their respective charters or by-laws, in an written agreement between an Indemnified Party any such person and MeriStar Target or one of the MeriStar Subsidiaries, or otherwise any Target Related Business in effect on the date Agreement Date (copies of this Agreement which have been delivered to Acquiror), Delaware Law or as provided in the Target Organizational Documents or the Target Related Business Organizational Documents, shall survive the Merger and shall continue in full force and effect for a period until ninety (90) days after the expiration of not less than six years the longest applicable statute of limitation. Acquiror agrees that from and after the Effective Time; provided that in Time it shall (and shall cause the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and Surviving Corporation to) indemnify all such claims. The Surviving Corporation shall indemnify all Indemnified Parties persons to the fullest extent permitted by applicable law such indemnity obligations with respect to all actual or alleged acts and or omissions prior to the Effective Time occurring in connection with or arising out of such individuals' services ’ service as officers, directors, employees or agents of MeriStar Target or any of the MeriStar Subsidiaries Target Related Businesses or as trustees trustees, fiduciaries or fiduciaries administrators of any plan for the benefit of employees, or otherwise on behalf of, MeriStar or any of the MeriStar Subsidiaries, occurring prior to the Effective Time, including the transactions contemplated by this Agreement. Without limiting the generality limitation of the foregoing, in the event any such Indemnified Party person is or becomes involved in any such capacity in any action, proceeding or investigation in connection with any actual or alleged action, inaction, state of affairs or other matter, including any matter related to the transactions contemplated by this Agreement, occurring at on or after, prior to the Effective Time, Acquiror shall (or shall cause the Surviving Corporation shall to) pay as incurred such Indemnified Party's legal person’s reasonable fees and other expenses of counsel selected by such person (including the cost of any investigation investigation, preparation and preparationsettlement) incurred in connection therewiththerewith promptly after statements therefor are received by Acquiror, except to the extent of any claims that are finally determined by a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or fraud of such indemnified party. Acquiror shall be entitled to participate in the defense of any such action or proceeding, and counsel selected by the indemnified person shall, to the extent consistent with their professional responsibilities, cooperate with Acquiror and any counsel designated by Acquiror. Acquiror shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by any indemnified person in successfully enforcing the indemnity and other obligations provided for in this section.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) ASC Radiant agrees that all rights to indemnification (and advancement of expenses) and all rights with respect to the elimination or limitation of liability now existing in favor of all persons (hereinafter referred to as “Covered Persons”) who at any employeetime (x) prior to the Closing Date were directors or officers of Radiant, agentand (y) after the Closing Date, director were directors, officers or officer employees of MeriStar and the MeriStar Subsidiaries (the "Indemnified Parties") as Enterprise, provided in their respective charters Radiant’s Articles of Incorporation and Bylaws and under any indemnification agreement or by-lawsother contract listed in Schedule 2.13 attached hereto, as in an agreement between an Indemnified Party and MeriStar or one effect as of the MeriStar SubsidiariesClosing Date, with respect to matters occurring at or otherwise in effect on prior to the date of this Agreement Closing Date, shall survive after the Merger Closing Date and shall continue in full force and effect for a period of not less than six years after the Effective TimeClosing Date. During such period, Radiant shall not amend, repeal or otherwise modify such provisions for indemnification (and advancement of expenses) and elimination or limitation of liability in any manner that would materially and adversely affect the rights thereunder of Covered Persons in respect of actions or omissions occurring at or prior to the Close of the Separation Date (including, without limitation, the transactions contemplated by the Exchange Agreement), without the written consent of Enterprise, which consent shall not be unreasonably withheld or delayed, unless such modification is required by law; provided provided, however, that in the event any claim or claims are asserted or made either prior to the Closing Date or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Surviving Corporation Without limiting the foregoing, from and after the Closing Date, Radiant shall indemnify indemnify, defend and hold harmless each Covered Person from and against any and all Indemnified Parties to Liabilities of the fullest extent permitted by applicable law with respect to all acts and omissions Covered Persons relating to, arising out of such individuals' services as officers, directors, employees or agents resulting from any claim of MeriStar a current or former shareholder of Radiant against any of the Covered Persons made in connection with or related to the execution and delivery of the Exchange Agreement or any of the MeriStar Subsidiaries Related Agreements, or consummation of the Separation and the Exchange, whether asserted or claimed prior to, at or after the Closing Date, and shall pay each Covered Person any expenses, as trustees or fiduciaries incurred, in advance of the final disposition of any plan for action relating to such claims; provided, however, that the benefit Covered Persons shall not be entitled to such indemnity if a court of employeescompetent jurisdiction issues a final, or otherwise on behalf of, MeriStar or any nonappealable Order (as such term is defined in the Exchange Agreement) that (x) Gxxxx did not provide the Special Committee with the “required disclosure” (as such term is defined in Section 14-2-860(4) of the MeriStar Subsidiaries, occurring prior Georgia Business Corporation Code) to the Effective Timeextent such information was not known by any member thereof, including and (y) the transactions contemplated Separation and Exchange are not entitled to the protections afforded by this Agreement. Without limiting the generality Section 14-2-861(b) of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring at or after, the Effective Time, the Surviving Georgia Business Corporation shall pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewithCode.
Appears in 1 contract
