Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.
Appears in 5 contracts
Samples: Agreement and Plan of Merger (AMICAS, Inc.), Agreement and Plan of Merger (Emageon Inc), Agreement and Plan of Merger (Emageon Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of not less than six years from the event Effective Date, AbbVie shall cause Allergan or any applicable Subsidiary thereof (collectively, the “D&O Indemnifying Parties”), to the fullest extent each such D&O Indemnifying Party is so authorized or permitted by applicable Law, as now or hereafter in effect, to: (i) indemnify and hold harmless each person who is at the date hereof, was previously, or during the period from the date hereof through the date of any threatened or actual Legal Actionthe Effective Time, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former serving as a director or officer of Allergan or any of its Subsidiaries, or at the Company request or for the benefit of Allergan or any of its Subsidiaries as a director, trustee or officer of any other entity or any benefit plan maintained by Allergan or any of its Subsidiaries (togethercollectively, the “D&O Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on as of the date of this Agreement, against in connection with any D&O Claim and any losses, claims, damages, liabilities, costsClaim Expenses, reasonable legal judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other expenses charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such D&O Claim; and (including reimbursement for reasonable legal and other fees and expenses ii) promptly advance to such D&O Indemnified Party any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Claim Expenses incurred by such D&O Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification and/or advancement, in each case without the requirement of any bond or investigation. To other security, but subject to the extent permitted D&O Indemnifying Party’s receipt of a written undertaking by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses on behalf of each such D&O Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Claim Expenses if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any D&O Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.
Appears in 5 contracts
Samples: Transaction Agreement, Transaction Agreement, Transaction Agreement (Allergan PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any employee, officer or director may have under any agreement or Benefit Plan or under the event Company's charter or bylaws, after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of any threatened the Effective Time) and former officer or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (togetherthe "Indemnified Directors and Officers"), the “Indemnified Parties”against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys' fees and disbursements (collectively, "Costs") isincurred in connection with any claim, action, suit, proceeding or is threatened to beinvestigation, made a party based whether civil, criminal, administrative or investigative, arising out of actions taken by them in whole their capacity as officers or in part on, directors at or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation Transactions), or taken by them at the request of the Merger Company or any Subsidiary of the other transactions contemplated hereby)Company, Parent and the Surviving Corporation (eachwhether asserted or claimed prior to, an “Indemnifying Party”) will, jointly and severally, from and at or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by under applicable Law for a period of six years from the Effective Time. Each Indemnified Director and required by the Company Organizational Documents (or any similar organizational document Officer shall be entitled to advancement of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition defense of any Legal Action claim, action, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause from the Surviving Corporation to, promptly advance all out-of-pocket expenses within ten Business Days of each receipt by the Surviving Corporation from the Indemnified Party in connection with any such Legal Action Director or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party Officer of a request therefor; provided, however, (if and provided that any Person to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes whom expenses are advanced provides an undertaking to repay such amount advances if it is ultimately determined that such Indemnified Party person is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigationindemnification. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the The Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any Legal Action proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party Director or Officer hereunder) ), without the prior written consent of such Indemnified Party if and to the extent Director or Officer, which consent shall not be unreasonably withheld or delayed, unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlementDirector or Officer from all liability arising out of such action, compromise suit, proceeding, investigation or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentclaim.
Appears in 4 contracts
Samples: Option Holder Acknowledgement Agreement (Goodys Family Clothing Inc /Tn), Option Holder Acknowledgement Agreement (Goodys Family Clothing Inc /Tn), Acquisition Agreement And (GMM Capital LLC)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, Associated shall, to the fullest extent permitted by applicable Law and in the Company’s By-laws and Articles of Incorporation as in effect as of the date hereof, indemnify, defend and hold harmless, and provide advancement of expenses to, each person who is now, or has been at any threatened time prior to the date hereof, or actual Legal Actionwho becomes prior to the Effective Time, an officer or director of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) against all losses, expenses (including attorneys’ fees and expenses), claims, damages or liabilities or amounts paid in settlement, arising out of actions or omissions occurring at or prior to the Effective Time (and whether civilasserted or claimed prior to, criminal at or administrativeafter the Effective Time) that are, including any in whole or in part, pertaining to (i) the fact that such Legal Action person is or investigation in which any present or former was a director or officer of the Company or any of its the Company Subsidiaries or their respective predecessors or (together, the “Indemnified Parties”ii) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated completed hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after whether or not asserted or arising before the Effective Time. In the event that any Indemnified Party is required to bring any action to enforce rights or to collect moneys due under this Section 6.11(a) and is successful in such action, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any Associated shall reimburse such Indemnified Party or any Contract between an for all of its expenses in bringing and pursuing such action. Each Indemnified Party and shall be entitled to the Company or one advancement of its Subsidiaries, expenses to the full extent contemplated in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party Section 6.11(a) in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentaction.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Associated Banc-Corp), Agreement and Plan of Merger (Associated Banc-Corp), Agreement and Plan of Merger (State Financial Services Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In Until the event expiration of any threatened or actual Legal Actionall applicable statutes of limitations, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement from and after the consummation of the Merger Offer, the Company shall and Parent shall cause the Company (or any of successor to the other transactions contemplated hereby)Company) to, Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, Parent and Surviving Corporation shall, indemnify, defend and hold harmless, as harmless the present and to the fullest extent permitted or required by applicable Law former officers and required by the Company Organizational Documents (or any similar organizational document directors of the Company or any of and its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between Subsidiaries (each an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, "INDEMNIFIED PARTY") against any all losses, claims, damages, liabilities, costsfees, reasonable legal penalties and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance disbursements of the final disposition of any Legal Action or investigation to each Indemnified Party), counsel and judgments, fines fines, losses, claims, liabilities and amounts paid in settlement arising out of actions or omissions occurring at or before the consummation of the Offer) (including losses incurred by such Indemnified Party in connection with such Legal Action person's serving as a trustee or investigation. To other fiduciary in any entity if such service was at the request or for the benefit of the Company or any of its subsidiaries) to the full extent permitted by applicable Law and the Company Organizational DocumentsDGCL, Parent shall, such right to include the right to advancement of expenses incurred in the defense of any action or shall cause suit promptly after statements therefor are received to the Surviving Corporation to, promptly advance all out-of-pocket expenses of each fullest extent permitted by law; provided that the Indemnified Party in connection with any such Legal Action or investigation as such to whom expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes advanced provides an undertaking to repay such amount advance if it is ultimately determined that such Indemnified Party party is not entitled to be indemnified under indemnification. Notwithstanding the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Partyforegoing, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no an Indemnifying Party shall not be liable for any settlement, compromise or consent to the entry settlement of any judgment in any Legal Action or investigation claim effected without its prior such Indemnifying Party's written consent, which consent shall not be unreasonably withheld. Parent will cooperate in the defense of any such matter.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Triangle Pacific Corp), Agreement and Plan of Merger (Armstrong World Industries Inc), Agreement and Plan of Merger (Triangle Pacific Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, to the fullest extent permitted under the DGCL, indemnify and hold harmless, each Person who is on the date hereof, was previously, or during the period from the date hereof through the date of the Effective Time will be, serving as a director, officer, employee or agent of the Company or any Company Subsidiary or, at the request or for the benefit of the Company or any Company Subsidiary, as a director, trustee or officer of any other entity or any benefit plan (collectively, the “Indemnified Persons”), in the event of any threatened or actual Legal ActionProceeding, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to the fact that the Indemnified Person is or was a director (including in whole a capacity as a member of any board committee), officer, employee or in part toagent of the Company, any action of the Company Subsidiaries or failure to take action by any such Person in such capacity taken of their respective predecessors prior to the Effective Time (including with respect to any action acts, facts, events or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated herebyTransactions) (a “Claim”), Parent and the Surviving Corporation (eachwhether in any case such Claim is made before, an “Indemnifying Party”) will, jointly and severally, from and on or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, Time against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Partyattorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party Person in connection with any such Legal Action threatened or investigationactual Claim. To the extent permitted by applicable Law and the Company Organizational Documents, Parent The Surviving Corporation shall, or and Parent shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursementsfees) are incurred by an Indemnified Person who is on the date hereof, was previously, or during the period from the date hereof through the date of the Effective Time will be, serving as a director or officer of the Company in defending any Claim in advance of the final disposition of such Claim upon receipt from of an undertaking by or on behalf of such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes Person to repay such amount if it is shall ultimately be determined that such Indemnified Party person is not entitled to be indemnified under the DGCL or other applicable Law or by the Company Organizational Documents with respect pursuant to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentthis Section 7.8.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Lantheus Holdings, Inc.), Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In For six years after the event of any threatened or actual Legal ActionFirst Effective Time, whether civilthe Surviving LLC shall, criminal or administrativeand Parent shall cause the Surviving LLC to, including any such Legal Action or investigation in which any present to the fullest extent permitted by applicable Law, indemnify, defend and hold harmless each current or former director or officer of the Company or any of the Company’s Subsidiaries (each an “Indemnified Party” and collectively, the “Indemnified Parties”) against (i) all losses, expenses (including reasonable attorneys’ fees and expenses), judgments, fines, claims, damages or liabilities or, subject to the proviso of the next succeeding sentence, amounts paid in settlement, arising out of actions or omissions occurring at or prior to the First Effective Time (and whether asserted or claimed prior to, at or after the First Effective Time) to the extent that they are based on or arise out of the fact that such person is or was a director or officer of the Company or any of its Subsidiaries (together, the “Indemnified PartiesLiabilities”) isand (ii) all Indemnified Liabilities to the extent they are based on or arise out of or pertain to the transactions contemplated hereby, whether asserted or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part claimed prior to, any action at or failure to take action by after the First Effective Time. In the event of any such Person Indemnified Liability under part (i) or (ii) of this paragraph (whether or not asserted before the First Effective Time), the Surviving LLC shall indemnify and pay the reasonable fees and expenses of counsel reasonably promptly and otherwise advance to such Indemnified Party upon request, reimbursement of documented expenses reasonably incurred in such capacity taken each case to the extent provided in the Company Charter, Company Bylaws and any indemnification agreements of the Company (that have been made available to Parent prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”date hereof) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other Agreement (provided that the person to whom expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes advanced provides an undertaking to repay such amount advance if it is ultimately determined by a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party person is not legally entitled to be indemnified indemnification under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentLaw).
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Matterport, Inc./De), Agreement and Plan of Merger and Reorganization (Matterport, Inc./De), Agreement and Plan of Merger and Reorganization (Costar Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from From and after the Effective Time, Parent agrees that it shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless, as and to the fullest extent permitted under applicable Law, each current or required by applicable Law former director and required by the Company Organizational Documents (or any similar organizational document officer of the Company or any (determined as of its Subsidiariesthe Effective Time), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, when acting in effect on such capacity or in serving as a director, officer, member, trustee or fiduciary of another entity or enterprise, including a Plan, at the date request or benefit of this Agreementthe Company (each, a “D&O Indemnified Party” and, collectively, the “D&O Indemnified Parties”) against any costs or expenses (including attorneys’ fees and expenses), amounts paid in settlement, judgments, fines, losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses damages or liabilities incurred in advance connection with, arising out of or otherwise related to any Legal Proceeding in connection with, arising out of or otherwise related to matters existing or occurring or alleged to have occurred prior to, at or after the final disposition 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 Legal Action or investigation to each D&O Indemnified Party, and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable Law (upon receipt of appropriate undertakings in favor of Parent or the Surviving Corporation to repay such advanced expenses if it is ultimately determined in a final and non-appealable judgment by a court of competent jurisdiction that such D&O Indemnified Party was not entitled to be indemnified pursuant to this sentence). In the event of any such Legal Proceeding, judgments, fines Parent and amounts paid in settlement incurred by such the Surviving Corporation shall cooperate with the D&O Indemnified Party in connection with the defense of any such Legal Action or investigationProceeding. To For a period of six (6) years from the extent permitted by applicable Law and Effective Time, the Company Organizational Documents, Parent Surviving Corporation shall, or and Parent shall cause the Surviving Corporation to, promptly advance all out-of-pocket maintain in effect the exculpation, indemnification and advancement of expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and equivalent to the extent required by provisions of the DGCL or other applicable Law or certificate of incorporation and bylaws of the Company Organizational Documents) that such Indemnified Party undertakes as in effect immediately prior to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents Effective Time with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such Legal Action 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 period shall continue until the disposition of such action or investigationresolution of such claim. In The Surviving Corporation and its Subsidiaries as of the event any Legal Action or investigation is brought against any Indemnified Party, Effective Time shall (and Parent and shall cause the Surviving Corporation shall each use and its Subsidiaries as of the Effective Time to) honor and fulfill in all commercially reasonable efforts to assist respects the obligations of the Company and its Subsidiaries under any indemnification Contracts between any executive, officer or director and the Company in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent effect prior to the entry date of this Agreement that are set forth on Section 7.8(a) of the Company Disclosure Letter (and made available to Parent), and shall not amend, repeal or otherwise modify any such Contracts in any manner that would adversely affect in any respect the rights thereunder of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentParties.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Johnson & Johnson), Agreement and Plan of Merger (Johnson & Johnson), Agreement and Plan of Merger (Abiomed Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of Without limiting any threatened or actual Legal Action, whether civil, criminal or administrative, including additional rights that any such Legal Action or investigation in which any present or former director or officer may have under any agreement or Company Benefit Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Corporation to indemnify and hold harmless each present (as of the Effective Time) and former director and officer of the Company and its Subsidiaries (the “D&O 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 Proceeding arising out of or pertaining to the fact that such D&O Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, at or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions and actions contemplated hereby), Parent and the Surviving Corporation (eachwhether asserted or claimed prior to, an “Indemnifying Party”) will, jointly and severally, from and at or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by under applicable Law and the Company Organizational DocumentsCertificate of Incorporation or the Bylaws as at the date hereof; provided that no D&O Indemnified Party shall be entitled to indemnification for any act or omission which constitutes fraud or willful misconduct by such D&O Indemnified Party. In the event of any such Proceeding, Parent shall, or (A) each D&O Indemnified Party shall cause be entitled to advancement of expenses incurred in the defense of any Proceeding from the Surviving Corporation to, promptly advance all out-of-pocket expenses to the fullest extent permitted under applicable Law and the Certificate of each Incorporation and the Bylaws as of the date hereof provided that such D&O Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of first provides a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes written undertaking to repay such amount advances if it is ultimately determined that such Indemnified Party Person is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent indemnification and (B) the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in Proceeding for which indemnification could be has been sought by such D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent , unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such D&O Indemnified Party and (ii) no Indemnifying from all liability arising out of such Proceeding or such D&O Indemnified Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentotherwise consents.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Welbilt, Inc.), Agreement and Plan of Merger (Welbilt, Inc.), Agreement and Plan of Merger (Middleby Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In For six years after the event Effective Time, the Surviving Entity shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of Target and its Subsidiaries (each an “Indemnified Party”), who was or is made or is threatened to be made a party or is otherwise involved in any threatened action, suit or actual Legal Actionproceeding, whether civil, criminal criminal, or administrativeinvestigative (a “proceeding”) against all losses, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such Legal Action settlement is effected with the prior written consent of Parent, which will not be unreasonably withheld)) actually and reasonably incurred by the Indemnified Party because the Indemnified Party is or investigation in which any present or former was a director or officer of the Company Target pertaining to any act or any of its Subsidiaries (together, the “Indemnified Parties”) is, omission existing or is threatened to be, made a party based in whole occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (including the “Indemnified Liabilities”) to the full extent permitted under Delaware law or the Surviving Entity’s certificate of incorporation and bylaws. If an Indemnified Party makes or asserts any claim for Indemnified Liabilities, any determination required to be made with respect to any action or failure to take action occurring in connection whether an Indemnified Party’s conduct complies with the approval of this Agreement standards set forth under the DGCL shall be made by independent counsel mutually acceptable to the Surviving Entity and the consummation Indemnified Party; and provided, further, that nothing herein shall impair any rights or obligations of the Merger any Indemnified Party. If any claim or claims are brought against any of the other transactions contemplated hereby), Parent and the Surviving Corporation Indemnified Party (each, an “Indemnifying Party”) will, jointly and severally, from and whether arising before or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and may select counsel for the Company or one defense of its Subsidiariessuch claim, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation which counsel shall be reasonably acceptable to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, Target (if and to selected before the extent required by the DGCL or other applicable Law or the Company Organizational DocumentsEffective Time) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in Entity (if selected after the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentEffective Time).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Energy Partners LTD), Agreement and Plan of Merger (Stone Energy Corp), Agreement and Plan of Merger (Plains Exploration & Production Co)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event of any threatened or actual Legal ActionEffective Time, whether civilParent shall cause the Surviving Corporation to, criminal or administrativeindemnify, including any such Legal Action or investigation in which any defend and hold harmless each present or and former director or director, officer and employee of the Company (including in their capacity as fiduciary under any LQ Equity Plan) (in each case, when acting in any such capacity) (each, together with such person’s heirs, executors or any of its Subsidiaries (togetheradministrators, an “Indemnified Party” and collectively, the “Indemnified Parties”) is), against any costs or is expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or awards paid in settlement incurred in connection with any actual or threatened to beProceeding, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole relating to or in part to, any action connection with matters existing or failure to take action by any such Person in such capacity taken occurring at or prior to the Effective Time (including with respect to any action the fact that such Person is or failure to take action occurring in connection with the approval of this Agreement and the consummation was a director, officer or employee of the Merger Company or any of acts or omissions occurring or alleged to occur prior to the other transactions contemplated herebyEffective Time), Parent and the Surviving Corporation (eachwhether asserted or claimed prior to, an “Indemnifying Party”) will, jointly and severally, from and at or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted under the DGCL, and Parent or required by applicable Law the Surviving Corporation shall advance expenses (including reasonable legal fees and required by expenses) incurred in the Company Organizational Documents (defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 5.6, to the same extent as such Indemnified Parties are entitled to indemnification and advancement of expenses as of the date of this Agreement under the certificate of incorporation or any similar organizational document bylaws of the Company or any the certificate of its Subsidiaries)incorporation and bylaws, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiariesequivalent organizational documents, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request thereforRetained Subsidiary; provided, however, (if and that the Person to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes whom expenses are advanced provides an undertaking to repay such amount advances if it is ultimately determined that such Indemnified Party Person is not entitled to indemnification pursuant to this Section 5.6; provided, further, that any determination required to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents made with respect to such Legal Action whether an employee’s, officer’s or investigationdirector’s conduct complies with the standards set forth under the DGCL, the certificate of incorporation and bylaws shall be made by independent counsel selected by the Surviving Corporation. In the event of any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that Proceeding (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and Proceeding in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent , unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise consents, and (iiy) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and Merger Sub shall cause the Surviving Corporation’s certificate of incorporation and bylaws to contain provisions no Indemnifying Party shall less favorable with respect to indemnification, advancement of expenses and exculpation from liabilities of the Indemnified Parties than are currently provided in the certificate of incorporation and bylaws and the indemnification agreements currently in place between the Company and any such Persons and set forth on Section 5.6(a) of the Company Disclosure Letter, which provisions will not be liable for amended, repealed or otherwise modified in any settlementmanner that would adversely affect the rights thereunder of any such individuals until the sixth (6th) anniversary of the Effective Time, compromise or, in the event that any Proceeding is pending or consent asserted or any claim made during such period, until the disposition of any such Proceeding or claim, unless such amendment, modification or repeal is required by applicable Laws, in which case Parent agrees, and will cause the Surviving Corporation, to make such changes to the entry certificate of any judgment incorporation and the bylaws as to have the least adverse effect on the rights of the individuals referenced in any Legal Action or investigation effected without its prior written consentthis Section 5.6.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Wyndham Hotels & Resorts, Inc.), Agreement and Plan of Merger (Wyndham Worldwide Corp), Agreement and Plan of Merger (La Quinta Holdings Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, that unless otherwise provided in any relevant indemnification agreement, the Surviving Corporation will not be liable for any settlement effected without the Surviving Corporation’s prior written consent and will not be obligated to pay the fees and expenses of more than one counsel (if and selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single such claim, action, suit, proceeding or investigation, except to the extent required that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action. It shall be a condition to the advancement of any amounts to be paid in respect of legal and other fees and expenses that the Surviving Corporation receive an undertaking by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentLaw.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aramark Corp/De), Agreement and Plan of Merger (Neubauer Joseph)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of not less than six years from the event Effective Date, Parent shall cause the Company or any applicable Subsidiary thereof (collectively, the “D&O Indemnifying Parties”), to the fullest extent each such D&O Indemnifying Party is so authorized or permitted by applicable Laws, as now or hereafter in effect, to: (i) indemnify and hold harmless, to the fullest extent permitted under the applicable Laws and pursuant to existing arrangements and Organizational Documents of any threatened the Company Group (as in effect as of the date of this Agreement) each person who is at the date of this Agreement, was previously, or actual Legal Actionduring the period from the date of this Agreement through the date of the Effective Time, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former serving as a director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) isSubsidiaries, or is threatened to be, made a party based in whole at the request or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to for the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document benefit of the Company or any of its Subsidiaries)Subsidiaries as a director, and when applicable trustee or officer of any indemnity agreements applicable to any such Indemnified Party other entity or any Contract between an Indemnified Party and benefit plan maintained by the Company or one any of its SubsidiariesSubsidiaries (collectively, in each casethe “D&O Indemnified Parties”), as in effect on as of the date of this Agreement, against in connection with any D&O Claim and any losses, claims, damages, liabilities, costsClaim Expenses, reasonable legal judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other expenses charges paid or payable in connection with or in respect of any thereof) relating to or resulting from a D&O Claim; and (including reimbursement for reasonable legal and other fees and expenses ii) promptly advance to such D&O Indemnified Party any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Claim Expenses incurred by such D&O Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification or investigation. To advancement, in each case without the extent permitted requirement of any bond or other security, but subject to the D&O Indemnifying Party’s receipt of a written undertaking by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses on behalf of each such D&O Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Claim Expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.D&O
Appears in 2 contracts
Samples: Transaction Agreement (Horizon Therapeutics Public LTD Co), Transaction Agreement
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under any of the event Organizational Documents, Company Articles, the Company Bylaws, the Operating Trust Articles, the Operating Trust Bylaws or this Agreement or, if applicable, similar agreements of any threatened of the U.S. Subsidiaries or actual Legal Actionthe Foreign Subsidiaries, whether civilfrom and after the Company Merger Effective Time, criminal the Surviving Entity shall: (i) indemnify and hold harmless each person who is at the date hereof or administrativeduring the period from the date hereof through the Company Merger Effective Time serving as a trustee, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its U.S. Subsidiary or the Foreign Subsidiaries (togethercollectively, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent authorized or permitted or required by applicable Law Law, as now or hereafter in effect, in connection with any Claim and required by the Company Organizational Documents any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or any similar organizational document payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom; and (ii) promptly pay on behalf of each of the Company Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any of its Subsidiaries)Indemnifiable Expenses incurred in defending, and when applicable serving as a witness with respect to or otherwise participating in any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Indemnifiable Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documentsindemnification and/or advancement, Parent shall, or shall cause the Surviving Corporation to, promptly advance including all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon expenses, in each case without the requirement of any bond or other security, but subject to Parent’s or the Surviving Entity’s, as applicable, receipt from of an undertaking by or on behalf of such Indemnified Party of a request therefor; providedParty, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes Law, to repay such amount Indemnifiable Expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.such
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Archstone Smith Trust)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, the Surviving Corporation shall, in accordance with the Company Organizational Documents and indemnification agreements in effect on the date hereof, and Parent shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and advance expenses to, each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to Damages (including amounts paid in settlement or compromise) and Expenses (including those of legal counsel) in connection with any threatened Legal Action (including as may be administrative or actual Legal Actioninvestigative), whether civil, criminal or administrativewhenever asserted, including any such Legal Action based on or investigation arising out of, in which any present whole or former in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or any of its Subsidiaries or was acting in such capacity, or (togetherB) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of the Company or any of its Subsidiaries or taken at the request of the Company or any of its Subsidiaries (including in connection with serving at the request of the Company or any of its Subsidiaries as a director, officer or representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the “Indemnified Parties”Effective Time (including any Legal Action (including as may be administrative or investigative) is, or is threatened to be, made a party based relating in whole or in part onto the Transactions or relating to the enforcement of this provision) and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from Liabilities for acts or arising in whole omissions occurring at or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring as provided in connection with the approval Company Organizational Documents as in effect on the date of this Agreement and the consummation or in any agreement in existence as of the Merger date of this Agreement, as specified in Section 5.5(a) of the Company Disclosure Letter, providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severallyforegoing, from and after the Effective Time, indemnifyunless otherwise required by Law, defend the certificate of incorporation and hold harmless, as and bylaws of the Surviving Corporation shall contain provisions no less favorable to the fullest extent permitted or required by applicable Law Indemnitees with respect to limitation of liabilities of directors and required by the Company Organizational Documents (or any similar organizational document officers and indemnification than are set forth as of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this AgreementAgreement in the Company Organizational Documents, against any losseswhich provisions shall not be amended, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred repealed or otherwise modified in advance a manner that would adversely affect the rights thereunder of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigationIndemnitees. To the extent permitted by applicable Law and Law, the indemnification agreements identified in Section 5.5(a) of the Company Organizational Documents, Parent shall, or Disclosure Letter shall cause continue in full force and effect in accordance with their terms following the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentEffective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mitel Networks Corp), Agreement and Plan of Merger (ShoreTel Inc)
Directors’ and Officers’ Indemnification and Insurance. T he Surviving Corporation shall, and Newco shall cause the Surviving Corporation to, (ai) In the event indemnify and hold harmless, and provide advancement of any threatened or actual Legal Actionexpenses to, whether civilall past and present directors, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer officers and employees of the Company or any of PNU and its Subsidiaries (togetherin all of their capacities), to the “Indemnified Parties”) issame extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by PNU pursuant to PNU's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any directors, officers and employees of PNU and its Subsidiaries for acts or is threatened to be, made a party based in whole omissions occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent (ii) include and cause to be maintained in effect in the Surviving Corporation Corporation's (each, an “Indemnifying Party”or any successor's) will, jointly certificate of incorporation and severally, from and by-laws for a period of six years after the Effective Time, indemnifythe current provisions regarding elimination of liability of directors, defend indemnification of officers, directors and hold harmlessemployees and advancement of expenses contained in the certificate of incorporation and by-laws of PNU, as the case may be, and (iii) cause to be maintained for a period of six years after the fullest extent permitted or required Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by applicable Law and required by PNU (provided that the Company Organizational Documents Surviving Corporation (or any similar organizational document successor) may substitute therefor policies of at least the Company or any of its Subsidiaries), same coverage and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party amounts containing terms and the Company or one of its Subsidiariesconditions which are, in each casethe aggregate, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and no less advantageous to the extent required by the DGCL or other applicable Law or the Company Organizational Documentsinsured) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action claims arising from facts or investigation. In events that occurred on or before the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterEffective Time; provided, however, that (i) neither Parent nor in no event 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 PNU for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall settle, compromise or consent be obligated to obtain a policy with the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by greatest coverage available for a cost not exceeding such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentamount.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Monsanto Co), Agreement and Plan of Merger (Pharmacia & Upjohn Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of Without limiting any threatened additional rights that any Person may have under any agreement, document, law or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severallyPlan, from and after the Effective Time, indemnify, defend each Surviving Corporation shall indemnify and hold harmlessharmless each present (as of the Effective Time) and former officer, director or employee of such Surviving Corporation 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 (collectively, “Costs”), incurred in connection with any suit, claim, action, proceeding, arbitration, mediation or governmental investigation, whether civil, criminal, administrative or investigative (an “Action”), arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, fiduciary or agent of BioLite or BioKey, as applicable or any of their respective Subsidiaries or another entity if such service to the other entity was at the request or for the benefit of BioLite or BioKey, as applicable or any of their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the extent provided under applicable Law and BioLite or BioKey’s or a Subsidiary’s Articles of Incorporation or Bylaws, as applicable, as at the date hereof. In the event of any such Action, each indemnified Person shall be entitled to advancement of expenses incurred in the defense of any Action from the applicable Surviving Corporation to the fullest extent that BioLite or BioKey or their respective Subsidiaries, as applicable, would be permitted or required by under applicable Law and required by the Company Organizational Documents (BioLite’s, BioKey’s, or any similar organizational document their respective Subsidiaries’ Articles of the Company Incorporation or any of its Subsidiaries)Bylaw, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiariesas applicable, in each case, in effect on as at the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request thereforhereof; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes Person shall execute and deliver an undertaking that such Person shall return such amounts to repay such amount BioLite or BioKey, as applicable, if it is ultimately determined that such Indemnified Party is Person was not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentfunds.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In For six years after the event Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof, an officer or director of Stone and its Subsidiaries or Wave and its Subsidiaries (each an “Indemnified Party”), who was or is made or is threatened to be made a party or is otherwise involved in any threatened action, suit or actual Legal Actionproceeding, whether civil, criminal criminal, or administrativeinvestigative (a “proceeding”) against all losses, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such Legal Action settlement is effected with the prior written consent of the Surviving Corporation, which will not be unreasonably withheld)) actually and reasonably incurred by the Indemnified Party because the Indemnified Party is or investigation in which any present or former was a director or officer of the Company Stone, Wave or any of its their respective Subsidiaries (together, the “Indemnified Parties”) is, pertaining to any act or is threatened to be, made a party based in whole omission existing or in part on, occurring at or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time including any act or omission relating to this Agreement or the Transactions (including the “Indemnified Liabilities”) to the full extent permitted under Delaware law (and Georgia law, to the extent applicable) or the Surviving Corporation’s articles of incorporation and bylaws. If any claim for Indemnified Liabilities is asserted or made by an Indemnified Party, any determination required to be made with respect to any action or failure to take action occurring in connection whether an Indemnified Party’s conduct complies with the approval of this Agreement standards set forth under the DGCL (and the consummation of GBCC to the Merger or any of the other transactions contemplated hereby), Parent and extent applicable) shall be made by independent counsel mutually acceptable to the Surviving Corporation and the Indemnified Party; and provided, further, that nothing herein shall impair any rights or obligations of any Indemnified Party. If any claim or claims are brought against any Indemnified Party (eachwhether arising before or after the Effective Time), such Indemnified Party may select counsel for the defense of such claim, which counsel, if selected prior to the Effective Time, shall be reasonably acceptable to Stone (if such claim involves an “Indemnifying Party”) willofficer or director of Stone), jointly and severallyreasonably acceptable to Wave (if such claim involves any officer or director of Wave), from and which, if selected after the Effective Time, indemnify, defend and hold harmless, as and shall be reasonably acceptable to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentCorporation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Healthtronics Surgical Services Inc), Agreement and Plan of Merger (Prime Medical Services Inc /Tx/)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws, the Operating Partnership Agreement or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Subsidiaries (each of which shall remain in full force and effect following the Mergers and each of which Parent shall cause the Surviving Entity and the Subsidiaries to honor), from and after the Company Merger Effective Time, Parent, the Surviving Entity and the Operating Partnership shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the Company Merger Effective Time serving as a trustee, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its the Subsidiaries (togethercollectively, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent authorized or permitted or required by applicable Law Law, as now or hereafter in effect, in connection with any Claim and required by the Company Organizational Documents any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or any similar organizational document payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom; and (ii) promptly pay on behalf of each of the Company Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any of its Subsidiaries)Expenses incurred in defending, and when applicable serving as a witness with respect to or otherwise participating in any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification and/or advancement, in each case without the requirement of any bond or investigation. To other security, but subject to Parent’s or the extent permitted Surviving Entity’s, as applicable, receipt of an undertaking by or on behalf of such Indemnified Party, if required by applicable Law and the Company Organizational DocumentsLaw, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterindemnified; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party Entity shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation settlement effected without its prior Parent’s or the Surviving Entity’s written consent.consent (which consent shall not be unreasonably withheld or delayed) and shall not be obligated to pay the fees and expenses of
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eop Operating LTD Partnership), Agreement and Plan of Merger (Eop Operating LTD Partnership)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal civil or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company Apple or any of its Subsidiaries subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documentsclaim Action, Parent shall, or shall cause subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall will not be liable for any settlementsettlement effected without the Surviving Corporation’s prior written consent (which will not be unreasonably delayed or withheld) and will not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single such Action, compromise or consent except to the entry extent that two or more of any judgment such Indemnified Parties have conflicting interests in any Legal Action the outcome of such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Applica Inc), Agreement and Plan of Merger (Applica Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Subsidiaries, from and after the Effective Date, Parent and Surviving Corporation shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the Effective Date serving as a director, whether civilofficer, criminal trustee, or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (togetherwithin the meaning of Section 3(3) of ERISA) (collectively, the “"Indemnified Parties”") isto the fullest extent authorized or permitted by applicable Law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of such judgments, fines, penalties or arising amounts paid in whole settlement) resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable law, as now or hereafter in part out of, or pertaining in whole or in part toeffect, any action D&O Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to take action the Indemnified Party of any D&O Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Person indemnification and/or advancement, in each case without the requirement of any bond or other security (but subject to Parent's or Surviving Corporation's, as applicable, receipt of a written undertaking by or on behalf of such capacity taken prior Indemnified Party, if required by applicable Law, to repay such D&O Expenses if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified). The indemnification and advancement obligations of Parent and Surviving Corporation pursuant to this Section 7.05(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), Parent and the Surviving Corporation (eachall rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director, an “Indemnifying Party”) willofficer, jointly and severallytrustee, from and after the Effective Timeemployee, indemnifyagent, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document fiduciary of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on Subsidiaries after the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal hereof and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and inure to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense benefit of such matter; providedperson's heirs, however, that executors and personal and legal representatives. As used in this Section 7.05(a): (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term "
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pomeroy It Solutions Inc), Agreement and Plan of Merger (Pomeroy It Solutions Inc)
Directors’ and Officers’ Indemnification and Insurance. From and after the Effective Time, the Surviving Entity shall (ai) In the event of indemnify and hold harmless, against any threatened costs or actual Legal Actionexpenses (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 criminal, administrative or administrativeinvestigative, including any such Legal Action or investigation in which any and provide advancement of expenses to, all past and present or former director or officer directors, officers and employees of CBOT Holdings and the Company or any of its CBOT Holdings Subsidiaries (together, in all of their capacities) (the “Indemnified PartiesPersons”) is(A) to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by CBOT Holdings pursuant to CBOT Holdings’ Constituent Documents and indemnification agreements, or is threatened if any, in existence on the date hereof with any Indemnified Persons and (B) without limitation to beclause (A), made a party based to the fullest extent permitted by Law, (ii) honor the provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken CBOT Holdings’ Constituent Documents immediately prior to the Effective Time and (including iii) maintain 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 CBOT Holdings (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 any action claims arising from facts or failure to take action 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 Merger or any of the other transactions contemplated hereby); and provided, Parent further, that in no event shall the Surviving Entity be required to expend in any one year more than 250% of the current annual premium expended by CBOT Holdings and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after CBOT Holdings Subsidiaries to maintain or procure such D & O Insurance immediately prior to the Effective TimeTime (such 250% amount, indemnifythe “Maximum Annual Premium”); provided, defend and hold harmlessfurther, as and that if the annual premiums of such insurance coverage exceed such amount, the Surviving Entity shall be obligated to obtain a policy with the fullest extent permitted or required by applicable Law and required by greatest coverage available for a cost not exceeding the Company Organizational Documents (or any similar organizational document Maximum Annual Premium. The obligations of the Company 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 (it being expressly agreed that the indemnitees to whom this Section 6.8 applies shall be third party beneficiaries of this Section 6.8). The rights of any Indemnified Person under this Section 6.8 shall be in addition to any other rights such Indemnified Person may have under the Certificate of Incorporation or Bylaws of the Surviving Entity or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party under the DGCL, or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date otherwise. The provisions of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance Section 6.8 shall survive the consummation of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigationMerger. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense Entity or any of such matter; provided, however, that its successors or assigns (i) neither Parent nor consolidates with or merges into any other person and shall not be the continuing or Surviving Corporation shall settle, compromise Entity or consent to the entry of any judgment entity in any Legal Action such consolidation or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise merger or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party transfers all or substantially all of its properties and assets to any person, then and in either such case, the Surviving Entity shall cause proper provision to be liable for any settlementmade so that the successors and assigns of the Surviving Entity, compromise or consent to as the entry of any judgment case may be, shall assume the obligations set forth in any Legal Action or investigation effected without its prior written consentthis Section 6.8.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Chicago Mercantile Exchange Holdings Inc), Agreement and Plan of Merger (Cbot Holdings Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of six years after the event of Effective Time, Xxxxxxxx shall indemnify, defend and hold harmless each person who is now, or who has been at any threatened time before the date hereof or actual Legal Actionwho becomes before the Effective Time, whether civilan officer, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer employee of the Company VIST or any of its Subsidiaries an VIST Subsidiary (together, the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of Xxxxxxxx, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to bebe made, made a party based or witness in whole or in part on, or arising in whole or in part out ofof the fact that such person is or was a director, officer or pertaining in whole employee of VIST or in part toan VIST Subsidiary if such Claim pertains to any matter of fact arising, any action existing or failure to take action by any such Person in such capacity taken prior to occurring at or before the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of including, without limitation, the Merger or any of and the other transactions contemplated hereby), Parent and the Surviving Corporation (eachregardless of whether such Claim is asserted or claimed before, an “Indemnifying Party”) willor after, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent as would have been permitted or required by applicable Law VIST under the PCBL and required by the Company Organizational Documents (or any similar organizational document under VIST’s articles of the Company or any of its Subsidiaries), incorporation and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other bylaws. Xxxxxxxx shall pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such action or investigation proceeding to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To to the fullest extent as would have been permitted by applicable Law VIST under the PCBL and the Company Organizational Documentsunder VIST’s articles of incorporation and bylaws, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes an undertaking to repay such amount advance payments if it is ultimately he or she shall be adjudicated or determined that such Indemnified Party is to be not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist indemnification in the vigorous defense of such matter; provided, however, that (imanner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.6(a) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry upon learning of any judgment Claim, shall notify Xxxxxxxx and shall deliver to Xxxxxxxx the undertaking referred to in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent previous section; provided that the failure to so notify shall not affect the obligations of such Indemnified Party if and Xxxxxxxx under this section except to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent failure to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.notify materially prejudices Xxxxxxxx..
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vist Financial Corp), Agreement and Plan of Merger (Tompkins Financial Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time and until the sixth anniversary of the Effective Time and for so long thereafter as any threatened claim for indemnification asserted on or actual Legal Actionprior to such date has not been fully adjudicated, whether civilCorel and the Surviving Corporation (each, criminal an "Indemnifying Party") shall indemnify, defend and hold harmless each person who is now, or administrativehas been at any time prior to the date hereof or who becomes prior to the Effective Time, including any such Legal Action or investigation in which any present or former a director or officer of the Company Inprise or any of its Subsidiaries (togetherthe "Indemnified Parties") against (i) all losses, claims, damages, costs and expenses (including reasonable attorneys' fees), liabilities, judgments and settlement amounts that are paid or incurred in connection with any claim, action, suit, proceeding or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, or arises in whole or in part out of, the “fact that such Indemnified Parties”Party is or was a director or officer of Inprise or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Effective Time ("Indemnified Liabilities"), and (ii) is, or is threatened to be, made a party all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and or the consummation of the Merger or any of the other transactions contemplated hereby), Parent and in each case to the Surviving Corporation full extent permitted under applicable law; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Except as disclosed in Section 6.10 of the Inprise Disclosure Letter, Inprise is not aware of any Indemnified Liabilities or of any reasonable basis for the assertion thereof. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (each, an “Indemnifying Party”) will, jointly and severally, from and whether arising prior to or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and (i) the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other Indemnifying Parties will pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such claim, action, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To to the full extent permitted by applicable Law and law; provided that the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket person to whom expenses of each Indemnified Party in connection with are advanced provides any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent undertaking required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes law to repay such amount advance if it is ultimately determined that such Indemnified Party person is not entitled to be indemnified under indemnification; (ii) the DGCL or other applicable Law or Indemnified Parties shall retain counsel reasonably satisfactory to the Company Organizational Documents with respect Indemnifying Parties; (iii) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent final sentence of this paragraph) promptly as statements therefor are received; and (iv) the Surviving Corporation Indemnifying Parties shall each use all commercially reasonable efforts to assist in the vigorous defense of any such matter; provided. Any Indemnified Party wishing to claim indemnification under this Section, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry upon learning of any judgment in such claim, action, suit, proceeding or investigation, shall notify the Indemnifying Parties, but the failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any Legal Action or investigation (and in liability which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and it may have under this paragraph except to the extent such settlementfailure materially prejudices such Indemnifying Party. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, compromise under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or judgment involves non-monetary relief from more Indemnified Parties, in which case the Indemnified Parties may to the extent necessary to avoid such Indemnified Party and (ii) no conflict retain more than one or more additional law firm, in which event the Indemnifying Party Parties shall be liable for any settlement, compromise or consent required to pay the entry reasonable fees and expenses of any judgment in any Legal Action or investigation effected without its prior written consentonly one law firm representing the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Inprise Corp), Merger Agreement (Inprise Corp)
Directors’ and Officers’ Indemnification and Insurance. 7.8.1. For a period of six (a6) In years after the event Effective Time, BMBC shall indemnify, defend and hold harmless each person who is now, or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of any threatened RBPI or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries a RBPI Subsidiary (together, the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of BMBC, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to bebe made, made a party based or witness in whole or in part on, or arising in whole or in part out ofof the fact that such person is or was a director or officer of RBPI or a RBPI Subsidiary if such Claim pertains to any matter of fact arising, existing or pertaining in whole occurring at or in part to, any action or failure to take action by any such Person in such capacity taken prior to before the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of including, without limitation, the Merger or any of and the other transactions contemplated hereby), Parent and the Surviving Corporation (eachregardless of whether such Claim is asserted or claimed before, an “Indemnifying Party”) willor after, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent as would have been permitted by RBPI under the PBCL and under RBPI’s articles of incorporation and bylaws or required by applicable Law and required by the Company Organizational Documents (or equivalent governing documents of any similar organizational document of the Company or any of its Subsidiaries)RBPI Subsidiary, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiariesas applicable, in each case, case as in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other hereof. BMBC shall pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such action or investigation proceeding to each Indemnified Party), judgments, fines Party to the fullest extent as would have been permitted by RBPI under the PBCL and amounts paid in settlement incurred by under RBPI’s articles of incorporation upon receipt of an undertaking to repay such advance payments if such Indemnified Party in connection with such Legal Action shall be adjudicated or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and determined to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is be not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist indemnification in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent manner set forth below. Any Indemnified Party wishing to the entry claim indemnification under this Section 7.8.1 upon learning of any judgment in Claim, shall notify BMBC (but the failure so to notify BMBC shall not relieve it from any Legal Action or investigation (and in liability which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and it may have under this Section 7.8.1, except to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party failure prejudices BMBC) and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent deliver to BMBC the entry of any judgment undertaking referred to in any Legal Action or investigation effected without its prior written consentthe previous sentence.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Royal Bancshares of Pennsylvania Inc), Agreement and Plan of Merger (Bryn Mawr Bank Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Subsidiaries, from and after the Effective Date, Parent and Surviving Corporation shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the Effective Date serving as a director, whether civilofficer, criminal trustee, or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (togetherwithin the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of such judgments, fines, penalties or arising amounts paid in whole settlement) resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable law, as now or hereafter in part out of, or pertaining in whole or in part toeffect, any action Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to take action the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Person indemnification and/or advancement, in such capacity taken prior each case without the requirement of any bond or other security. The indemnification and advancement obligations of Parent and Surviving Corporation pursuant to this Section 7.06(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent including the consideration and approval thereof and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly process undertaken in connection therewith and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its SubsidiariesClaim relating thereto), and when applicable any indemnity agreements applicable all rights to any such Indemnified Party or any Contract between an Indemnified Party indemnification and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation advancement conferred hereunder shall continue as to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled person who continues to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect has ceased to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.a
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New Plan Excel Realty Trust Inc), Agreement and Plan of Merger (Centro Properties LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event of Effective Time, Parent will and Parent will cause the Surviving Corporation to (i) indemnify and hold harmless, against any threatened costs or actual Legal Actionexpenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding, whether civil, criminal criminal, administrative or administrativeinvestigative, including any such Legal Action or investigation in which any and provide advancement of expenses to, all past and present or former director or officer directors and officers of the Company or any of its and the Company Subsidiaries (together, in all of their capacities) (the “Indemnified PartiesPersons”) is(A) to the same extent such Indemnified Persons are indemnified or exculpated 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 Contracts, or is threatened if any, in existence on the date of this Agreement with the Indemnified Persons and (B) without limitation to beclause (A), made a party based to the fullest extent permitted by Law, (ii) honor and will not amend the provisions regarding elimination of liability of directors, indemnification of directors and officers and advancement of expenses contained in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken the Company’s Constituent Documents immediately prior to the Effective Time, and (iii) maintain for a period of six years after the Effective Time policies of directors’ and officers’ liability insurance and fiduciary liability insurance (including “D&O Insurance”) covering each person covered by the Company’s current D&O Insurance as of the Effective Time, providing for at least the same coverage and amounts as, and containing terms and conditions which are no less favorable to the insured than, such current D&O Insurance, with respect to any action claims arising from facts or failure to take action 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 Merger or any of the other transactions contemplated hereby)by this Agreement. Notwithstanding the foregoing, Parent and in no event will the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after be required to expend for any one coverage year more than 300 percent of the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required current annual premium expended by the Company Organizational Documents (or any similar organizational document and the Company Subsidiaries as set forth in Section 7.4(a) of the Company Disclosure Letter to maintain or any procure such D&O Insurance immediately prior to the Effective Time (such amount, the “Maximum Annual Premium”). If the annual premiums of its Subsidiaries)such insurance coverage exceed the Maximum Annual Premium, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation towill be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. In lieu of the foregoing insurance coverage, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under may purchase “tail” insurance coverage, at a cost no greater than the DGCL or other applicable Law or six times the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, howeverMaximum Annual Premium, that (i) neither Parent nor provides coverage not less favorable than the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentcoverage described above.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Usg Corp), Agreement and Plan of Merger (Gebr. Knauf Verwaltungsgesellschaft Kg)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any individual who, at any time prior to the event of any threatened Effective Time, is or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former was a director or officer of the Company or any Subsidiary of its Subsidiaries (togetherthe Company or, while a director or officer of the “Indemnified Parties”) is, Company or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by Subsidiary of the Company at any such Person in such capacity taken time prior to the Effective Time, is or was serving at the request of the Company or any Subsidiary of the Company as a director or officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (such individual, together with such individual’s heirs, executors or administrators, an “Indemnified Person”), may have under any employment or indemnification agreement, the Company Charter, the Company Bylaws, or one or more other Company Organizational Documents, the Surviving Corporation shall, and Parent shall cause the Surviving Company to, from and after the Effective Time: (i) indemnify and hold harmless each Indemnified Person to the fullest extent authorized or permitted by, and subject to the conditions and procedures of, applicable Law, against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees), Orders, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) (collectively, “Indemnification Expenses”) incurred by such Indemnified Person in defending or serving as a witness in any Legal Action; and (ii) within twenty (20) days after any written request for advancement is received by the Surviving Corporation, advance to an Indemnified Person any Indemnification Expenses incurred by such Indemnified Person in defending or serving as a witness in any Legal Action in advance of the final disposition of such Legal Action, which such advancement right shall include any Indemnification Expenses incurred by such Indemnified Person in connection with enforcing any rights to indemnification or advancement under this Section 5.11(a), in each case without the requirement of any bond or other security; provided, that the payment of any Indemnification Expenses incurred by an Indemnified Person in advance of the final disposition of a Legal Action shall be made only upon delivery of an undertaking by or on behalf of such Indemnified Person to repay all amounts so paid in advance if it shall ultimately be determined in a final nonappealable judicial decision that such Indemnified Person is not entitled to be indemnified under applicable Law. The indemnification and advancement obligations of the Surviving Corporation under this Section 5.11(a) extend to acts or omissions of an Indemnified Person occurring at or before the Effective Time and any Legal Action relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of Transactions, including the other transactions contemplated hereby), Parent consideration and approval thereof and the Surviving Corporation (each, an “Indemnifying Party”process undertaken in connection therewith and any Legal Action relating thereto). All rights to indemnification and advancement conferred under this Section 5.11(a) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, shall continue as and to the fullest extent permitted any Indemnified Person who has ceased to be a director or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document officer of the Company or any Subsidiary of its Subsidiaries)the Company at or after the Effective Time and inure to the benefit of such person’s heirs, executors and personal and legal representatives. The Surviving Corporation shall not, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation Company not to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment Order in any actual or threatened Legal Action or investigation (and in respect of which indemnification could be has been sought by such any Indemnified Party hereunderPerson under this Section 5.11(a) without the prior written consent of such Indemnified Party if and to the extent unless such settlement, compromise or judgment involves non-monetary relief from Order includes an unconditional release of such Indemnified Party and Person from all liability arising out of such Legal Action without admission or finding of wrongdoing, or such Indemnified Person otherwise consents thereto. If the Surviving Corporation shall fail to pay or advance, as applicable, any amounts required to be paid or advanced, as applicable, by the Surviving Corporation to an Indemnified Person pursuant to this Section 5.11(a), Parent shall be obligated to pay or advance, as applicable, any such amounts; provided, however, that Parent shall (i) have the same defenses with respect to such payment or advancement, as applicable, as the Surviving Corporation, (ii) no Indemnifying Party shall be liable entitled to enforce any undertaking provided by such Indemnified Person pursuant to this Section 5.11(a) in the same manner and with the same effect as the Surviving Corporation and (iii) have a claim of contribution against the Surviving Corporation for any settlement, compromise amounts paid or consent advanced by Parent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.an Indemnified Person pursuant to this sentence. 30
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Steel Connect, Inc.), Agreement and Plan of Merger (Steel Partners Holdings L.P.)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of six years after the event Effective Time, Investors Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company Roma Financial or any of its Subsidiaries Roma Subsidiary (together, the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of Investors Bancorp, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to bebe made, made a party based or witness in whole or in part on, or arising in whole or in part out ofof the fact that such person is or was a director, officer or pertaining in whole employee of Roma Financial or in part toa Roma Subsidiary if such Claim pertains to any matter of fact arising, any action existing or failure to take action by any such Person in such capacity taken prior to occurring at or before the Effective Time (including with respect to any action or failure to take action occurring in connection with including, without limitation, the approval of this Agreement Mergers and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (eachregardless of whether such Claim is asserted or claimed before, an “Indemnifying Party”) willor after, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent as would have been permitted or required by Roma Financial under the applicable Law Regulations and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), under Roma Financial’s Charter and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other Bylaws. Investors Bancorp shall pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such action or investigation proceeding to each Indemnified PartyParty to the fullest extent as would have been permitted by Roma Financial under applicable Regulations and under Roma Financial’s Charter 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 6.08 upon learning of any Claim, shall notify Investors Bancorp (but the failure to so notify Investors Bancorp shall not relieve Investors Bancorp from any liability which it may have under this Section 6.08, except to the extent such failure materially prejudices Investors Bancorp) and shall deliver to Investors Bancorp the undertaking referred to in the previous section. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), judgments(i) Investors Bancorp, fines or an insurance carrier pursuant to Section 6.08(c) below, shall have the right to assume the defense thereof and amounts paid in settlement Investors Bancorp shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party Parties in connection with the defense thereof, except that if Investors Bancorp elects not to assume such Legal Action defense or investigation. To counsel for the extent permitted by applicable Law Indemnified Parties advises that there are issues which raise conflicts of interest between Investors Bancorp and the Company Organizational DocumentsIndemnified Parties, Parent shallthe Indemnified Parties may retain counsel which is reasonably satisfactory to Investors Bancorp, or shall cause unless the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled provided with counsel by an insurance carrier pursuant to be indemnified under Section 6.08(c) below, and Investors Bancorp shall pay, promptly as statements therefore are received, the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent reasonable fees and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense expenses of such matter; provided, however, that counsel for the Indemnified Parties (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment which may not exceed one firm in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlementjurisdiction), compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party the Indemnified Parties will cooperate in the defense of any such matter, (iii) Investors Bancorp shall not be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation settlement effected without its prior written consentconsent (which consent shall not be unreasonably withheld) and (iv) 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 Party in the manner contemplated hereby is prohibited by applicable laws and regulations.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Investors Bancorp Inc), Agreement and Plan of Merger (Roma Financial Corp)
Directors’ and Officers’ Indemnification and Insurance. (ai) In Parent shall (A) indemnify and hold harmless all past and present directors, officers and employees of AmeriSource and its subsidiaries (in all of their capacities) (x) to the event same extent such persons are indemnified or have the right to advancement of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer expenses as of the Company or any date of its Subsidiaries (togetherthis Agreement by AmeriSource pursuant to the AmeriSource Certificate, the “Indemnified Parties”AmeriSource Bylaws and indemnification agreements, if any, in existence on the date hereof with any directors, officers and employees of AmeriSource and its subsidiaries and (y) iswithout limitation to clause (x), to the fullest extent permitted by Applicable Law, in each case for act or is threatened to be, made a party based in whole omissions occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), (B) include and cause to be maintained in effect in the Parent (or any successor's) Certificate of Incorporation and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and Bylaws after the Effective Time, indemnifyprovisions regarding elimination of liability of directors, defend indemnification of officers, directors and hold harmlessemployees and advancement of expenses which are, as and in the aggregate, no less advantageous to the fullest extent permitted or required by applicable Law intended beneficiaries than the corresponding provisions contained in the AmeriSource Certificate and required by the Company Organizational Documents AmeriSource Bylaws, (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable C) periodically advance to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of indemnitee its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal the cost of any investigation and other fees and expenses preparation incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Partyconnection therewith), judgmentssubject to clause (iii) of this Section 6.1(f), fines and amounts paid in settlement incurred subject to the providing by such Indemnified Party indemnitee of an undertaking to reimburse all amounts so advanced in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party event of a request therefor; provided, however, (if and to the extent required final non-appealable determination by the DGCL or other applicable Law or the Company Organizational Documents) a court of competent jurisdiction that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party indemnitee is not entitled hereto and (D) cause to be indemnified under maintained for a period of six years after the DGCL Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by AmeriSource (provided that Parent (or other applicable Law any successor) may substitute therefor one or more policies of at least the Company Organizational Documents same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to such Legal Action claims arising from facts or investigation. In events that occurred on or before the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterEffective Time; provided, however, that (i) neither in no event shall Parent nor the Surviving Corporation shall settle, compromise or consent be required to the entry of any judgment expend in any Legal Action or investigation (and one year an amount in which indemnification could be sought by excess of $1,500,000 for such Indemnified Party hereunder) without insurance; and, provided further that if the prior written consent annual premiums of such Indemnified Party if and to the extent insurance coverage exceed such settlementamount, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party Parent shall be liable obligated to obtain a policy with the greatest coverage available for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consenta cost not exceeding such amount.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bergen Brunswig Corp), Agreement and Plan of Merger (Amerisource Health Corp/De)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of six years after the event of Effective Time, Acquiror shall not cause or permit any threatened amendment, repeal or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer other modification of the Company provisions of (i) Article IV, Section 14 of the by-laws of the Surviving Corporation, as set forth in EXHIBIT H attached hereto, or (ii) Article Eighth of the certificate of incorporation of the Surviving Corporation, in either case in any manner that would adversely affect the rights thereunder of individuals who at any time prior to the Effective Time were directors, officers or employees of Tenneco or any of its Subsidiaries (together, the “Indemnified Parties”) is, subsidiaries or is threatened Affiliates or who are otherwise entitled to be, made a party based indemnification pursuant to such provisions in whole respect of actions or in part on, omissions occurring at or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with including, without limitation, the approval of transactions contemplated by this Agreement and the consummation Distribution Agreement), unless such modification is required by the DGCL or applicable federal law, and then only to the extent of such applicable requirements of the Merger DGCL or any of federal law. To the other transactions contemplated hereby), Parent and extent the Surviving Corporation is unable for any reason to fulfill its obligations under the bylaw provisions set forth in EXHIBIT H attached hereto, Acquiror agrees to pay, perform and discharge all such obligations. (eachb) Prior to the Effective Time, an “Indemnifying Party”) willTenneco shall, jointly and severally, from and after the Effective TimeTime the Acquiror and the Surviving Corporation jointly and severally shall, indemnify, defend and hold harmlessharmless each Person who is now, as and has been at any time prior to the fullest extent permitted date of this Agreement or required by applicable Law and required by the Company Organizational Documents (who becomes prior to Effective Time an officer, director or any similar organizational document employee of the Company Tenneco or any of its Subsidiaries)subsidiaries (collectively, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries"INDEMNIFIED PARTIES") against all losses, in each case, in effect on the date of this Agreement, against any lossesexpenses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action liabilities or investigation to each Indemnified Party), judgments, fines and amounts that are paid in settlement incurred by such Indemnified Party in connection of, with such Legal Action or investigation. To the extent permitted by applicable Law and approval of the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.22
Appears in 2 contracts
Samples: Agreement and Plan of Merger (El Paso Natural Gas Co), Agreement and Plan of Merger (Newport News Shipbuilding Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In The Surviving Corporation shall (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of Kerr-McGee, Oryx and their respective Subsidiaries to the event same extent such persons are xxxxxxxxxxd or have the right to advancement of any threatened expenses as of the date of this Agreement by Kerr-McGee, Oryx or actual Legal Actiontheir respective Subsidiaries pursuant to Kerr-McGee's, whether civilOryx's or sxxx Xxxxxxiary's certificate of incorporation, criminal by-laws or administrativeothex xxxxxxxxxxt documents and indemnification agreements, including if any, in existence on the date hereof with any such Legal Action directors, officers and employees for acts or investigation in which any present omissions occurring at or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby); and (ii) 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 Kerr-McGee, Parent Oryx or their respective Subsidiaries (provided that the Surviving Corporatxxx (xx xxy 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 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); provided, however, that in no event shall the Surviving Corporation (eachbe required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by Kerr-McGee and Oryx for such insurance; and, an “Indemnifying Party”) willprovided, jointly and severallyfurther, that if the annual premxxxx xx xxch insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. In addition, from and after the Effective Time, indemnify, defend directors and hold harmless, as and to the fullest extent permitted officers of Oryx who become directors or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document officers of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and will be entitled to the extent required by same indemnity rights and protections as are afforded to the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent directors and officers of the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentCorporation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kerr McGee Corp), Agreement and Plan of Merger (Kerr McGee Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying PartyParties”) will, jointly and severally, from and after the Effective Time, jointly and severally indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and as and to the fullest extent required by the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement as incurred for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, subject to Parent’s or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined finally adjudicated (not subject to appeal) that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that, except as otherwise expressly set forth in any applicable written agreement between the Company or any of its Subsidiaries, on the one hand, and any present or former director or officer thereof, on the other hand, that (i) is in effect on the date hereof and provides for indemnification of such present or former director or officer by the Company or any of its Subsidiaries in respect of the matters that are subject to indemnification under this Section 5.9(a), neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable under this Section 5.9 for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation settlement effected without its Parent’s (with respect to itself) and the Surviving Corporation’s (with respect to itself) prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (K2 Inc), Agreement and Plan of Merger (Jarden Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of six (6) years following the event Effective Time, (i) Park and the Surviving Entity shall jointly and severally indemnify and hold harmless each person who is at the date hereof, was previously, or is during any of any threatened the period from the date hereof until the Effective Time, serving as a manager, director, officer, trustee or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company or any of its the Company Subsidiaries and acting in such capacity (togethercollectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable Law as now or hereafter in effect, in connection with any Claim with respect to matters occurring on or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to before the Effective Time and any Losses, Claim Expenses and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such Claim; and (ii) Park shall cause the Surviving Entity to promptly pay on behalf of or advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Claim Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification and/or advancement, in each case without the requirement of any bond or investigation. To the extent permitted by applicable Law other security, but subject to Park’s and the Company Organizational Documents, Parent shall, Surviving Entity’s receipt of (A) an undertaking by or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses on behalf of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Claim Expenses if it is ultimately determined under applicable Laws or any of the Company Governing Documents that such Indemnified Party is not entitled to be indemnified under and (B) a good faith affirmation by such Indemnified Party of such Indemnified Party’s compliance with the DGCL standard of conduct required herein; provided that none of Park, the Surviving Entity or other any of their respective Affiliates shall be liable for any amounts paid in settlement effected without its prior written consent (which consent shall not be unreasonably conditioned, withheld or delayed), as applicable, and shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Law or the Company Organizational Documents Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single Claim except to the extent the Indemnified Party is advised by counsel that such Legal Action Indemnified Party has conflicting interests with one or investigation. In more other Indemnified Parties in the outcome of such action (in which event any Legal Action or investigation is brought against any such Indemnified PartyParty shall be entitled to engage separate counsel, Parent the fees and expenses for which the Surviving Corporation Entity shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the be liable). The Surviving Corporation Entity shall not settle, compromise or consent to the entry of any judgment in any Legal Action actual or investigation (and threatened Claim in respect of which indemnification could be has been sought by such an Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent hereunder unless such settlement, compromise or judgment involves non-monetary relief from includes an unconditional release of such Indemnified Party and (ii) no Indemnifying from all liability arising out of such Claim, or such Indemnified Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentotherwise consents thereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Park Hotels & Resorts Inc.), Agreement and Plan of Merger (Chesapeake Lodging Trust)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director or officer may have under any employment or indemnification agreement in effect on the event date hereof, from the Effective Time through the sixth (6th) anniversary of any threatened the date on which the Effective Time occurs, Parent and the Surviving Corporation (the “Indemnitors”) shall: (i) indemnify and hold harmless each person who is at the date of this Agreement or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former during the period from the date of this Agreement through the Closing Date serving as a director or officer of the Company or any of its Subsidiaries (togethercollectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of such judgments, fines, penalties or arising amounts paid in whole settlement) resulting therefrom, and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance (provided, however, that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable law) to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable law, as now or hereafter in part out of, or pertaining in whole or in part toeffect, any action Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to take action the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Person indemnification and/or advancement, in such capacity taken prior each case without the requirement of any bond or other security. The indemnification and advancement obligations of the Indemnitors pursuant to this Section 7.12(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or Transactions, including the consideration and approval thereof and the process undertaken in connection therewith and any of the other transactions contemplated herebyClaim relating thereto), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly all rights to indemnification and severally, from and after the Effective Time, indemnify, defend and hold harmless, advancement conferred hereunder shall continue as and to the fullest extent permitted a person who continues to be or required by applicable Law and required by the Company Organizational Documents (who has ceased to be a director or any similar organizational document officer of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on Subsidiaries after the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal Agreement and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and inure to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense benefit of such matter; providedperson’s heirs, however, that executors and personal and legal Representatives. As used in this Section 7.12(a): (iA) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term “
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Engility Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In For six years after the event Effective Time Anthem shall, and shall cause the Surviving Entity to, (i) indemnify and hold harmless the present and former directors, officers and employees of Cigna and its Subsidiaries (the “Indemnified Persons”) for any threatened costs and expenses, judgments, fines, losses, claims, damages or actual Legal Actionliabilities incurred in connection with any claim, action, suit or proceeding, whether civil, criminal criminal, administrative or administrativeinvestigative, including any by reason of the fact that such Legal Action Indemnified Person is or investigation in which any present or former was an officer, director or officer employee of the Company Cigna or any of its Subsidiaries (together, the “Indemnified Parties”) is, in respect of acts or is threatened to be, made a party based in whole omissions occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect those related to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and shall advance expenses in respect thereof (provided, that an Indemnified Person shall repay Anthem or the Surviving Corporation Entity for any expenses incurred by Anthem or the Surviving Entity in connection with the indemnification of such Indemnified Person pursuant to this Section 5.6 if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that such Indemnified Person did not meet the standard of conduct necessary for indemnification by Anthem or the Surviving Entity as set forth in Cigna’s certificate of incorporation, bylaws or indemnification agreements, if any, in existence on the date hereof (each, an “Indemnifying Party”) will, jointly and severally, from and after or the Effective Time, indemnify, defend and hold harmlesscorresponding organizational documents of any Subsidiary of Cigna, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiariesapplicable), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries), in each case, in effect on case to the same extent such Persons are indemnified or have the right to advancement of expenses as of the date hereof by Cigna pursuant to Cigna’s certificate of this Agreementincorporation, against any losses, claims, damages, liabilities, costs, reasonable legal bylaws and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.agreements,
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cigna Corp), Agreement and Plan of Merger
Directors’ and Officers’ Indemnification and Insurance. (a) In Newco will indemnify, defend and hold harmless each person who is now, or has been at any time prior to the event date hereof or who becomes prior to the Effective Time, (i) an officer or director of any threatened Dynegy and its Subsidiaries or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer an employee of the Company Dynegy or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made who acts as a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or fiduciary under any of the other transactions contemplated hereby)Dynegy Benefit Plans, Parent (ii) an officer or director of Illinova and the Surviving Corporation (each, its Subsidiaries or an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (employee of Illinova or any similar organizational document Subsidiary of Illinova who acts in a fiduciary under any of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between Illinova Benefit Plans (each an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, "INDEMNIFIED PARTY") against any all losses, claims, damages, liabilities, costs, reasonable legal fees and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance disbursements of the final disposition of any Legal Action or investigation to each Indemnified Party), counsel and judgments, fines fines, losses, claims, liabilities and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with (provided that any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it settlement is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents effected with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of Newco, which will not be unreasonably withheld)) arising in whole or in part out of actual or alleged actions or omissions in their capacity as such occurring at or prior to the Effective Time to the fullest extent permitted under Illinois law or Newco's articles of incorporation and bylaws and Dynegy's and Illinova's indemnification obligations in effect at the date hereof, and shall advance expenses incurred in the defense of any Action to the fullest extent permitted by law; provided, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Illinois law, Newco's articles of incorporation or bylaws or such obligations, as the case may be, will be made by independent counsel mutually acceptable to Newco and the Indemnified Party; and provided, further, that nothing herein will impair any rights or obligations of any Indemnified Party. If any claim or claims are brought against any Indemnified Party (whether arising before or after the Effective Time), such Indemnified Party may select counsel for the defense of such claim, which counsel 60 62 should be reasonably acceptable to Dynegy and Illinova (if and selected prior to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party Effective Time) and Newco (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to if selected after the entry of any judgment in any Legal Action or investigation effected without its prior written consentEffective Time).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dynegy Inc), Agreement and Plan of Merger (Illinova Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries Arcus Entities (togethercollectively, the “"Indemnified Parties”") isagainst all Claims or amounts that, with the approval of the Surviving Corporation as to settlements only, are paid in settlement of or is threatened to be, made a party otherwise in connection with any Claim based in whole or in part on, on or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any of the fact that such Person in such capacity taken is or was a director or officer of any of the Arcus Entities and pertaining to any matter existing or arising out of actions or omissions occurring at or prior to the Effective Time (including with respect to including, without limitation, any action or failure to take action occurring in connection with the approval Claims arising out of this Agreement and the consummation of Agreement, the Merger or any of the other transactions contemplated herebyTransaction), Parent and the Surviving Corporation (eachwhether asserted or claimed prior to, an “Indemnifying Party”) will, jointly and severally, from and at or after the Effective Time, indemnify, defend and hold harmless, as and in each case to the fullest extent permitted or required by currently provided under the applicable Law and required by the Company Organizational Arcus Entity's Organic Documents (or any similar organizational document of but only to the Company or any of its Subsidiariesextent permitted under Applicable Law), and when applicable shall pay any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiariesexpenses, in each caseas incurred, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such action or investigation proceeding to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To to the fullest extent permitted by applicable Law and the Company Organizational Documentsunder Applicable Law, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such the Indemnified Party to whom expenses are advanced of a request therefor; provided, however, (if and an undertaking to repay such advances to the extent required by under Applicable Law. Without limiting the DGCL or other applicable Law or foregoing (but only to the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified extent provided for under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In Arcus Entity's Organic Documents), in the event any Legal Action or investigation such Claim is brought against any of the Indemnified PartyParties, Parent such Indemnified Parties may retain counsel (including local counsel) satisfactory to them and which shall be reasonably satisfactory to the Surviving Corporation, and the Surviving Corporation shall each use pay all commercially reasonable efforts to assist in the vigorous defense fees and expenses of such matter; providedcounsel for such Indemnified Parties. The Indemnified Parties as a group shall retain only one law firm (plus appropriate local counsel) to represent them with respect to each such Claim unless there is, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent as determined by counsel to the entry Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any judgment in any Legal Action two or investigation (and more Indemnified Parties, in which indemnification could be sought by event such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent entitled to retain separate legal counsel at the entry expense of any judgment in any Legal Action or investigation effected without its prior written consentthe Surviving Corporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Iron Mountain Inc /De)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, Parent shall, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, officers and employees of the Company and its Subsidiaries (in all of their capacities) and all fiduciaries under any threatened Company Benefit Plans (collectively, the “Indemnified Parties”) against any costs, expenses (including attorney’s fees and expenses and disbursements), judgments, fines, losses, claims damages or actual Legal Actionliabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal criminal, administrative or administrativeinvestigative, including any such Legal Action arising out of or investigation in which any present pertaining to the fact that the Indemnified Party is or former director was a director, officer, employee or officer fiduciary of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or a fiduciary under any Company Benefit Plan or is threatened to beor was serving at the request of the Company or any of its Subsidiaries as a director, made a party based in whole officer or in part onemployee of any other corporation, limited liability company, partnership, joint venture, trust or arising in whole other business or in part out of, non-profit enterprise (including an employee benefit plan) whether asserted or pertaining in whole or in part claimed prior to, any action at or failure to take action by any such Person in such capacity taken prior to after the Effective Time (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties (within ten (10) days of receipt by Parent and or the Surviving Corporation (each, from an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided), howeverin all such cases to the same extent that 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 articles of incorporation, bylaws and indemnification agreements, if any, or by any one of the Company’s Subsidiaries pursuant to such Subsidiary’s articles of incorporation, bylaws and indemnification agreements of any Subsidiary of the Company, if any, in existence on the date hereof, (if and ii) without limitation to clause (i), to the fullest extent required permitted by applicable Law, include and cause to be maintained in effect in the DGCL Surviving Corporation’s (or other applicable Law or any successor’s) articles of incorporation and bylaws for a period of six (6) years after the Effective Time, the 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 articles of incorporation and bylaws of the Company Organizational Documentsand (iii) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal proceeding or threatened Action or investigation (and in which indemnification could be sought by such an Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent ), unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing, and cooperates in the defense of such proceeding or threatened Action. Prior to the Effective Time, Parent will use reasonable best efforts to obtain “tail” prepaid insurance policies with a claims period of at least six (ii6) years from and after the Effective Time from Parent’s or the Company’s current insurance carrier, or an insurance carrier with the same or better rating as the lower rated of Parent’s and the Company’s current insurance carrier, with respect to directors’ and officers’ liability insurance and fiduciary insurance (collectively, “D&O Insurance”), for the Indemnified Parties, with terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to matters existing or occurring prior to the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby). If such “tail” prepaid insurance policies have been obtained, Parent shall, and shall cause the Surviving Corporation after the Effective Time, to maintain such policies in full force and effect, for its full term, and to continue to honor its respective obligations thereunder. If Parent for any reason fails to obtain such “tail” prepaid insurance policies prior to the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no Indemnifying expense to the beneficiaries, for a period of at least six (6) years from and after the Effective Time for the Indemnified Parties, the D&O Insurance (provided that Parent (or any successor) may substitute therefor policies of at least the same terms, conditions, retentions and levels of coverage and amounts which are, in the aggregate, as favorable to the Indemnified Parties as provided in the existing policies as of the date of this Agreement) or, if such insurance is unavailable, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase the best available D&O Insurance for such six-year period from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to the Company’s existing D&O Insurance with terms, conditions, retentions and with levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement with respect to claims, actions, suits, proceedings or investigations, whether civil, criminal, administrative or investigative, arising out of or pertaining to facts or events that occurred prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby). The foregoing notwithstanding, in no event will Parent or the Surviving Corporation be required to expend annually in excess of 250% of the annual premium currently paid by the Company for such coverage (and to the extent the annual premium would exceed 250% of the annual premium currently paid by the Company for such coverage, the Surviving Corporation shall use all reasonable efforts to cause to be maintained the maximum amount of coverage as is available for such 250% of such annual premium). The obligations of Parent and the Surviving Corporation under this Section 6.7 shall not be terminated, amended or modified in any manner so as to adversely affect any Indemnified Party (including their successors, heirs and legal representatives) to whom this Section 6.7 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.7 applies shall be liable for any settlementthird party beneficiaries of this Section 6.7, compromise or consent to and this Section 6.7 shall be enforceable by such Indemnified Parties and their respective successors, heirs and legal representatives and shall be binding on all successors and assigns of Parent and the entry of any judgment in any Legal Action or investigation effected without its prior written consentSurviving Corporation).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, Parent shall, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, officers and employees of the Company and its Subsidiaries (in all of their capacities) and all fiduciaries under any threatened Company Benefit Plans (collectively, the “Indemnified Parties”) against any costs, expenses (including attorney’s fees and expenses and disbursements), judgments, fines, losses, claims damages or actual Legal Actionliabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal criminal, administrative or administrativeinvestigative, including any such Legal Action arising out of or investigation in which any present pertaining to the fact that the Indemnified Party is or former director was a director, officer, employee or officer fiduciary of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or a fiduciary under any Company Benefit Plan or is threatened to beor was serving at the request of the Company or any of its Subsidiaries as a director, made a party based in whole officer or in part onemployee of any other corporation, limited liability company, partnership, joint venture, trust or arising in whole other business or in part out of, non-profit enterprise (including an employee benefit plan) whether asserted or pertaining in whole or in part claimed prior to, any action at or failure to take action by any such Person in such capacity taken prior to after the Effective Time (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties (within ten (10) days of receipt by Parent and or the Surviving Corporation (each, from an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided), howeverin all such cases to the same extent that 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 articles of incorporation, bylaws and indemnification agreements, if any, or by any one of the Company’s Subsidiaries pursuant to such Subsidiary’s articles of incorporation, bylaws and indemnification agreements of any Subsidiary of the Company, if any, in existence on the date hereof, (if and ii) without limitation to clause (i), to the fullest extent required permitted by applicable Law, include and cause to be maintained in effect in the DGCL Surviving Corporation’s (or other applicable Law or any successor’s) articles of incorporation and bylaws for a period of six (6) years after the Effective Time, the 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 articles of incorporation and bylaws of the Company Organizational Documentsand (iii) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal proceeding or threatened Action or investigation (and in which indemnification could be sought by such an Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent ), unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing, and cooperates in the defense of such proceeding or threatened Action. Prior to the Effective Time, Parent will use reasonable best efforts to obtain “tail” prepaid insurance policies with a claims period of at least six (ii6) years from and after the Effective Time from Parent’s or the Company’s current insurance carrier, or an insurance carrier with the same or better rating as the lower rated of Parent’s and the Company’s current insurance carrier, with respect to directors’ and officers’ liability insurance and fiduciary insurance (collectively, “D&O Insurance”), for the Indemnified Parties, with terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to matters existing or occurring prior to the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the 52 transactions contemplated hereby). If such “tail” prepaid insurance policies have been obtained, Parent shall, and shall cause the Surviving Corporation after the Effective Time, to maintain such policies in full force and effect, for its full term, and to continue to honor its respective obligations thereunder. If Parent for any reason fails to obtain such “tail” prepaid insurance policies prior to the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no Indemnifying expense to the beneficiaries, for a period of at least six (6) years from and after the Effective Time for the Indemnified Parties, the D&O Insurance (provided that Parent (or any successor) may substitute therefor policies of at least the same terms, conditions, retentions and levels of coverage and amounts which are, in the aggregate, as favorable to the Indemnified Parties as provided in the existing policies as of the date of this Agreement) or, if such insurance is unavailable, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase the best available D&O Insurance for such six-year period from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to the Company’s existing D&O Insurance with terms, conditions, retentions and with levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement with respect to claims, actions, suits, proceedings or investigations, whether civil, criminal, administrative or investigative, arising out of or pertaining to facts or events that occurred prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby). The foregoing notwithstanding, in no event will Parent or the Surviving Corporation be required to expend annually in excess of 250% of the annual premium currently paid by the Company for such coverage (and to the extent the annual premium would exceed 250% of the annual premium currently paid by the Company for such coverage, the Surviving Corporation shall use all reasonable efforts to cause to be maintained the maximum amount of coverage as is available for such 250% of such annual premium). The obligations of Parent and the Surviving Corporation under this Section 6.7 shall not be terminated, amended or modified in any manner so as to adversely affect any Indemnified Party (including their successors, heirs and legal representatives) to whom this Section 6.7 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.7 applies shall be liable for any settlementthird party beneficiaries of this Section 6.7, compromise or consent to and this Section 6.7 shall be enforceable by such Indemnified Parties and their respective successors, heirs and legal representatives and shall be binding on all successors and assigns of Parent and the entry of any judgment in any Legal Action or investigation effected without its prior written consentSurviving Corporation).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sykes Enterprises Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of not less than six years from the event Effective Date, Parent shall cause the Company or any applicable Subsidiary thereof (collectively, the “D&O Indemnifying Parties”), to the fullest extent each such D&O Indemnifying Party is so authorized or permitted by applicable Laws, as now or hereafter in effect, to: (i) indemnify and hold harmless, to the fullest extent permitted under the applicable Laws and pursuant to existing arrangements and Organizational Documents of the Company Group (as in effect as of the date of this Agreement) each person who is at the date of this Agreement, was previously, or during the period from the date of this Agreement through the date of the Effective Time, serving as a director or officer of the Company or any of its Subsidiaries, or at the request or for the benefit of the Company or any of its Subsidiaries as a director, trustee or officer of any threatened other entity or actual Legal Actionany benefit plan maintained by the Company or any of its Subsidiaries (collectively, whether civilthe “D&O Indemnified Parties”), criminal as in effect as of the date of this Agreement, in connection with any D&O Claim and any losses, claims, damages, liabilities, Claim Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or administrativepayable in connection with or in respect of any thereof) relating to or resulting from a D&O Claim; and (ii) promptly advance to such D&O Indemnified Party any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Claim Expenses incurred by such Legal Action D&O Indemnified Party in connection with enforcing any rights with respect to such indemnification or investigation advancement, in which each case without the requirement of any present bond or former other security, but subject to the D&O Indemnifying Party’s receipt of a written undertaking by or on behalf of such D&O Indemnified Party to repay such Claim Expenses if it is ultimately determined under applicable Laws that such D&O Indemnified Party is not entitled to be indemnified. All rights to indemnification and advancement conferred hereunder shall continue as to a Person who has ceased to be a director or officer of the Company or any of its Subsidiaries (together, after the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval date of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and shall inure to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense benefit of such matter; providedPerson’s heirs, howeversuccessors, that executors and personal and legal representatives. As used in this Section 7.3: (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term “
Appears in 1 contract
Samples: Transaction Agreement (Amgen Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In The Restated Certificate of Incorporation and Bylaws of the event Company and its Subsidiaries shall not be amended, repealed or otherwise modified for a period of six (6) years from the Closing Date in any threatened manner that would adversely affect the indemnification rights thereunder of individuals who at the Closing Date were directors, officers, agents or actual Legal Action, whether civil, criminal employees of either the Company or administrative, including any such Legal Action the Subsidiaries or investigation in which any present or former director or officer otherwise entitled to indemnification pursuant to the Restated Certificate of Incorporation and/or Bylaws of the Company or any of its Subsidiaries (togethercollectively, the “"Indemnified Parties”"). To the fullest extent required or permitted by applicable law, the Company or the Subsidiaries, as applicable, shall indemnify and hold harmless (and shall advance expenses to) isthe Indemnified Parties against and from all liability, losses, demands, claims, actions or causes of action, suits, proceedings, investigations, deficiencies, fines, penalties, costs, damages and expenses whatsoever, whether foreseeable or unforeseeable, including without limitation, all legal, accounting and other professional fees, or is threatened to be, made other amounts otherwise in connection with any matter above (a party "Claim") based in whole or in part on, on the fact that such person is or was a director or officer of any of the Company or the Subsidiaries or arising in whole out of actions or in part out of, omissions occurring at or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with including, without limitation, the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated herebyby this Agreement), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and in each case to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable DGCL. Any determination required to any such Indemnified Party or any Contract between be made with respect to whether an Indemnified Party and Party's conduct complies with the Company or one of its Subsidiaries, in each case, in effect on standards set forth under the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable foregoing provisions shall be made by independent legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation counsel acceptable to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause both the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. 6.10 From and after the Effective Date, Bidco shall cause the Company and each of its subsidiaries to the fullest extent permitted by applicable Law: (a) In to indemnify, defend and hold harmless any directors, managers and officers of the event Company or any of its subsidiaries and any threatened or actual Legal Actionperson who was a director, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director manager or officer of the Company or any of its Subsidiaries subsidiaries in the six (together6) years prior to the Effective Date (collectively, the “D&O Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or against any Liability arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)in relation to such D&O Indemnified Party’s position as a director, Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted manager or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document officer of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable subsidiaries at least to any the extent such D&O Indemnified Party is indemnified immediately prior to the Effective Date pursuant to the Articles or any Contract deed of indemnity or other agreement between an such D&O Indemnified Party and the Company or one any of its Subsidiaries, in each case, subsidiaries; and (b) to: (i) maintain in effect on for a period of six (6) years after the Effective Date, if available, the current policies of directors’ and officers’ liability insurance maintained by the Company or any of its subsidiaries immediately prior to the Effective Date for the benefit of any D&O Indemnified Party; or (ii) to provide substitute policies of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the D&O Indemnified Parties when compared to the insurance maintained by the Company and its subsidiaries as of the date of this Agreement; or (c) to obtain as of the Effective Date “tail” directors’ and officers’ liability insurance policies with a claims period of six (6) years from the Effective Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the D&O Indemnified Parties when compared to the insurance maintained by the Company and its subsidiaries as of the date of this Agreement, against any lossesin the case of (i) Sub-Clauses (a) – (c) above, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action claims arising out of or investigation. In the event any Legal Action relating to events which occurred on or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent prior to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party Effective Date and (ii) no Indemnifying Party Sub-Clauses (b) and (c) above, provided that Bidco shall not be liable for required to maintain such policies if the cost exceeds three (3) times the annual cost of the current policies of directors’ and officers’ liability insurance maintained by the Company or any settlement, compromise or consent of its subsidiaries immediately prior to the entry of any judgment in any Legal Action or investigation effected without its prior written consentEffective Date.
Appears in 1 contract
Samples: Freeline Therapeutics Holdings PLC
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal civil or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company Apple or any of its Subsidiaries subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documentsclaim Action, Parent shall, or shall cause subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking 36 by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall will not be liable for any settlementsettlement effected without the Surviving Corporation’s prior written consent (which will not be unreasonably delayed or withheld) and will not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single such Action, compromise or consent except to the entry extent that two or more of any judgment such Indemnified Parties have conflicting interests in any Legal Action the outcome of such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nacco Industries Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time and until the sixth anniversary of the Effective Time and for so long thereafter as any threatened claim for indemnification asserted on or actual Legal Actionprior to such date has not been fully adjudicated, whether civilCR shall indemnify, criminal defend and hold harmless each Person who is now, or administrativehas been at any time prior to the date hereof or who becomes prior to the Effective Time, including any such Legal Action or investigation in which any present or former a director or officer of the Company Aegis or any of its Subsidiaries CR (togethercollectively, the “Indemnified Parties”) isagainst all losses, claims, damages, costs and expenses (including reasonable attorneys’ fees), Liabilities, judgments, fines and settlement amounts that are paid or incurred in connection with any Legal Action (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Effective Time) that is threatened to be, made a party based directly or indirectly (in whole or in part part) on, or arising arises directly or indirectly (in whole or in part part) out of, the fact that such Indemnified Party is or pertaining in whole was a director or in part toofficer of Aegis or CR, as the case may be, and relates to or arises out of any action or failure to take action by any such Person in such capacity taken omission occurring at or prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation ) (each, an “Indemnifying PartyIndemnified Liabilities”) willto the fullest extent permissible under applicable Law; provided that CR shall not be liable for any Indemnified Liabilities which occur as a result of fraud or the unlawful criminal actions, jointly gross negligence or willful misconduct of any Indemnified Party or exceed the scope of similar obligations owed by CR to its directors and severallyofficers as of the Effective Time. Without limiting the foregoing, from and in the event that any such Legal Action is brought against any Indemnified Party (whether arising prior to or after the Effective Time), indemnify, defend and hold harmless, CR will pay expenses in advance to each Indemnified Party or promptly reimburse each Indemnified Party for such expenses as and such expenses are incurred to the fullest extent permitted or by applicable Law; provided that the Person to whom expenses are advanced provides any undertaking required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount advance if it is ultimately determined in a final, non-appealable judgment of a court of competent jurisdiction that such Indemnified Party Person is not entitled to be indemnified indemnification. Any Indemnified Party wishing to claim indemnification under the DGCL or other applicable Law or the Company Organizational Documents with respect to this Section 5.10, upon learning of any such Legal Action or investigation. In Action, shall notify CR, but the event failure so to notify CR shall not relieve CR from any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in Liability which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and it may have under this paragraph except to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party failure actually and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentmaterially prejudices CR.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event of Effective Time, Sumitomo will cause the Surviving Corporation to (i) indemnify and hold harmless, against any threatened costs or actual Legal Actionexpenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding, whether civil, criminal criminal, administrative or administrativeinvestigative, including any such Legal Action or investigation in which any and provide advancement of expenses to, all past and present or former director or officer directors, officers and employees of Symetra and the Company or any of its Symetra Subsidiaries (together, in all of their capacities) (the “Indemnified PartiesPersons”) is(A) to the same extent such Indemnified Persons are indemnified or exculpated or have the right to advancement of expenses as of the date of this Agreement by Symetra pursuant to Symetra’s Constituent Documents and indemnification Contracts, or is threatened if any, in existence on the date of this Agreement with the Indemnified Persons and (B) without limitation to beclause (A), made a party based to the fullest extent permitted by Law, (ii) honor the provisions regarding elimination of liability of directors, indemnification of directors and officers and advancement of expenses contained in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken Symetra’s Constituent Documents immediately prior to the Effective Time and (including iii) maintain for a period of six years after the Effective Time policies of directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) covering each person covered by Symetra’s current D&O Insurance as of the Effective Time, providing for at least the same coverage and amounts as, and containing terms and conditions which are no less favorable to the insured than, such current D&O Insurance, with respect to any action claims arising from facts or failure to take action 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 Merger or any of the other transactions contemplated hereby)by this Agreement. Notwithstanding the foregoing, Parent and in no event will the Surviving Corporation be required to expend for any one coverage year more than 300 percent of the current annual premium expended by Symetra and the Symetra Subsidiaries to maintain or procure such D&O Insurance immediately prior to the Effective Time (eachsuch amount, an the “Indemnifying PartyMaximum Annual Premium”) will). If the annual premiums of such insurance coverage exceed the Maximum Annual Premium, jointly and severallythe Surviving Corporation will be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. In lieu of the foregoing insurance coverage, from and after Sumitomo may cause the Surviving Corporation to purchase six-year prepaid “tail” insurance coverage, at a cost no greater than a one-time payment equal to the Maximum Annual Premium, that provides coverage not less favorable to the insured than the coverage described above. Notwithstanding the foregoing, Symetra may in its sole discretion purchase, prior to the Effective Time, indemnifysix-year prepaid “tail” insurance coverage, defend and hold harmless, as and at a cost no greater than a one-time payment equal to the fullest extent permitted or required by applicable Law Maximum Annual Premium, that provides coverage not less favorable to the insured than the coverage described above, and required if Symetra has obtained such prepaid “tail” policy prior to the Effective Time, Sumitomo will cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries)Surviving Corporation, and when applicable any indemnity agreements applicable Sumitomo will have no further obligation to any such Indemnified Party purchase or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of pay for insurance pursuant to this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified PartySection 7.04(a), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Symetra Financial CORP)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, that the Surviving Corporation will not be liable for any settlement effected without the Surviving Corporation’s prior written consent (if which will not be unreasonably withheld or delayed) and will not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single such claim, action, suit, proceeding or investigation, except to the extent required that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action. It shall be a condition to the advancement of any amounts to be paid in respect of legal and other fees and expenses that the Surviving Corporation receive an undertaking by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentLaw.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Swift Transportation Co Inc)
Directors’ and Officers’ Indemnification and Insurance. 6.4.1 From and after the Effective Date, Bidder shall cause the Company and each of its subsidiaries to the extent permitted by applicable Law: (a) In honor and fulfill in all respects, and maintain in full force and effect, the event obligations of any threatened the Company and its subsidiaries to the fullest extent permissible under applicable Law, under the Articles or actual Legal Action, whether civil, criminal the articles of association or administrative, including any such Legal Action or investigation in which any present or former director or officer other comparable organisational documents of the Company or any of its Subsidiaries subsidiaries, in each case as in effect on the date hereof, and under any indemnification or other similar Contracts in effect on the date hereof, and disclosed in Clause 6.4 of the Company Disclosure Letter, to any directors, managers, officers or employees of the Company or any of its subsidiaries and person who was a director, manager, officer or employee of the Company or any of its subsidiaries (togetherin each case whose indemnification agreement is disclosed in Clause 6.4 of the Company Disclosure Letter) in the six (6) years prior to the Effective Date (collectively, the “D&O Indemnified Parties”) is, arising out of or is threatened relating to be, made a party based actions or omissions in whole their capacity as such occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (Date, including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent Acquisition; and the Surviving Corporation (each, an “Indemnifying Party”b) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmlessharmless any D&O Indemnified Parties against any liability arising in connection with or in relation to such D&O Indemnified Party’s position as a director, as and to the fullest extent permitted manager or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document officer of the Company or any of its Subsidiaries)subsidiaries, and when applicable any indemnity agreements applicable to any the extent such D&O Indemnified Party is indemnified immediately prior to the Effective Date pursuant to the Articles or any Contract deed of indemnity or other agreement between an such D&O Indemnified Party and the Company or one any of its Subsidiaries, in each case, in effect subsidiaries and listed on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentSchedule 6.4.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law Law, and as may otherwise be required by the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined by a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall will not be liable for any settlement, compromise or settlement effected without the Surviving Corporation’s prior written consent and will not be obligated to pay the entry fees and expenses of any judgment more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any Legal Action jurisdiction with respect to any single such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation, unless there is an actual conflict of interest among such Indemnified Parties such that one counsel cannot effectively represent all Indemnified Parties, in which case such number of counsel as are necessary.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lifecore Biomedical Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including including, without limitation, any such Legal Action claim, action, suit, proceeding or investigation in which any present person who is now, or former has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer or employee of the Company Seller or any of its Subsidiaries subsidiaries (together, the “Indemnified Parties”"INDEMNIFIED PARTIES") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole to (i) the fact that he is or in part towas a director, officer or employee of the Seller, any action of the Seller's subsidiaries or failure to take action by any such Person in such capacity taken prior to the Effective Time of their respective predecessors or (including with respect to any action or failure to take action occurring in connection with the approval of ii) this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and whether in any case asserted or arising before or after the Effective Time, indemnifythe parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, defend the Buyer shall indemnify and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries)law, and when applicable any indemnity agreements applicable to any each such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other attorneys' fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified PartyParty to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted of arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer; PROVIDED, HOWEVER, that (w) the Buyer shall have the right to assume the defense thereof and upon such assumption the Buyer or the Surviving Bank shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by such any Indemnified Party in connection with the defense thereof, except that if the Buyer elects not to assume such Legal Action defense or investigation. To counsel for the extent permitted by applicable Law Indemnified Parties and reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Buyer and the Company Organizational DocumentsIndemnified Parties, Parent shallthe Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Buyer, or and the Buyer shall cause pay the Surviving Corporation to, promptly advance all out-of-pocket reasonable fees and expenses of each such counsel for the Indemnified Party Parties, (x) the Buyer shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties, unless the proposed counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest among such parties, in connection with any such Legal Action or investigation as such expenses (including which case the Buyer shall pay the reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party expenses of a request therefor; provided, however, (if and one additional counsel to the extent required by necessary to avoid such conflict, (y) the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is Buyer shall not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation settlement effected without its prior written consentconsent (which consent shall not be unreasonably withheld) and (z) the Buyer shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim Indemnification under this Section 6.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Buyer thereof, PROVIDED, THAT the failure to so notify shall not affect the obligations of the Buyer under this Section 6.6 except to the extent such failure to notify materially prejudices the Buyer. The Buyer's obligations under this Section 6.6 shall continue in full force and effect for a period of six (6) years from the Effective Time; PROVIDED, HOWEVER, that all rights to indemnification in respect of any claim asserted or made within such period shall continue until the final disposition of such claim.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Community Bancorp Inc /Ma/)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Closing, Purchaser shall, and shall cause each of the members of the Company Group to, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the Closing Date, an officer or director (or a Person serving in a similar capacity) of any member of the Company Group (the “D&O Indemnified Parties”) against any and all Losses arising out of or relating to any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party Proceeding based in whole or in part on, on or arising out of or relating in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any the fact that such Person is or was an officer or director (or a Person serving in such capacity taken a similar capacity) of any member of the Company Group whether pertaining to any matter existing or occurring at or prior to the Effective Time Closing Date and whether asserted or claimed prior to, at or after, the Closing Date (including with respect the “D&O Indemnified Liabilities”), in each case to any action the full extent a corporation is permitted under applicable Law to indemnify its own officers or failure to take action occurring in connection with the approval of this Agreement directors (and the consummation Purchaser shall, or shall cause each of the Merger or any members of the other transactions contemplated hereby)Company Group to, Parent and the Surviving Corporation pay expenses in advance (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by in accordance with applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable an appropriate undertaking to any reimburse such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other advancement if such expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance are determine not to be indemnifiable) of the final disposition of any Legal Action or investigation such Proceeding to each D&O Indemnified Party). Without limiting the foregoing, judgments, fines and amounts paid in settlement incurred by the event any such Proceeding is brought against any D&O Indemnified Party in connection with such Legal Action (whether arising before or investigation. To after the extent permitted by applicable Law Closing Date), (i) the D&O Indemnified Party may retain counsel satisfactory to it and the Company Organizational Documentsreasonably satisfactory to Purchaser, Parent and Purchaser shall, or shall cause the Surviving Corporation Company Group to, promptly advance pay all out-of-pocket fees and expenses of each such counsel for the D&O Indemnified Party in connection with any such Legal Action or investigation promptly as such expenses statements therefor are received and (including reasonable attorneys’ fees ii) Purchaser and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each Group will use all commercially reasonable efforts to assist in the vigorous defense of any such matter; provided, that neither Purchaser nor any member of the Company Group shall be liable for any settlement effected without its prior written consent (which consent shall not unreasonably be withheld, conditioned or delayed). Any D&O Indemnified Party wishing to claim indemnification under this Section 4.9 shall notify Purchaser upon learning of any such Proceeding (but the failure to so notify shall not relieve a Person from any Liability which it may have under this Section 4.9 except to the extent such Person is materially prejudiced by such failure). The parties hereto agree that all rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any Proceeding, existing in favor of the D&O Indemnified Parties with respect to matters occurring through the Closing Date shall continue in full force and effect for a period of not less than six years from the Closing Date; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent all rights to the entry indemnification in respect of any judgment in any Legal Action D&O Indemnified Liabilities asserted or investigation (and in which indemnification could be sought by made within such Indemnified Party hereunder) without period shall continue until the prior written consent disposition of such D&O Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentLiabilities.
Appears in 1 contract
Samples: Agreement and Plan of Merger (First Financial Bancorp /Oh/)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened Parent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or actual Legal Action, whether civil, criminal omissions occurring at or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Company Merger Effective Time, whether asserted or claimed prior to, at or after the Company Merger Effective Time (including with respect to any action or failure to take action occurring matters arising in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), now existing in favor of the current or former directors, officers, managers or employees (“D&O Indemnified Parties”), as the case may be, of the Company or its Subsidiaries (including any member of the Subsidiary Adviser Group) as provided in their respective organizational documents as in effect on the date of this Agreement or in any Contract shall survive the Mergers and shall continue in full force and effect. Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, shall indemnify, defend and hold harmless, and advance expenses to D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Company Merger Effective Time (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent that the Company or its Subsidiaries (including any member of the Subsidiary Adviser Group) would be permitted by Applicable Law and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document documents of the Company or its Subsidiaries (including any member of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, 84 Subsidiary Adviser Group) as in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim. Parent nor the Surviving Corporation shall settlecause its organizational documents to contain provisions with respect to indemnification, compromise or consent advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the entry D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ (including the members of any judgment the Subsidiary Adviser Group’s) organizational documents as of the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any Legal Action or investigation (and in which indemnification could be sought by such manner that would adversely affect the rights thereunder of the D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentParties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Capital, LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from From and after the Effective Time, indemnify, defend and hold harmless, as and to Closing until the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document sixth anniversary of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational DocumentsClosing Date, Parent shall, or shall cause the Surviving Corporation toto honor and fulfill its obligations existing as of the date of this Agreement in favor of all current or former officers or directors of the Company (each a “D&O Indemnified Party”) under the Certificate of Incorporation or any other Company Contract in effect as of date hereof and disclosed in Part 5.5 of the Disclosure Schedule, promptly advance all out-of-pocket expenses for acts or omissions of each the D&O Indemnified Party Parties in connection with any such Legal Action or investigation their capacities as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request thereforthat occurred prior to the Effective Time; provided, however, that: (if and a) no D&O Indemnified Party will be entitled to exculpation from, or to be indemnified, reimbursed or advanced expenses by, any Acquired Company for any amount that such D&O Indemnified Party has paid, owes or may owe to an Indemnitee in such D&O Indemnified Party’s capacity as an Indemnitor under Section 9 or (ii) any Expense incurred or that may be incurred by such D&O Indemnified Party arising from or relating to the extent required evaluation, investigation, negotiation or defense of any claim brought by the DGCL or other applicable Law or the Company Organizational Documents) that such an Indemnitee pursuant to Section 9, and no D&O Indemnified Party undertakes shall assert, or be entitled to repay assert, such amount if it is ultimately determined that party’s rights under this Section 5.5 as a defense against any obligation such D&O Indemnified Party is not may have under Section 9 in such D&O Indemnified Party’s capacity as an Indemnitor; (b) no D&O Indemnified Party shall be entitled to exculpation from, or to be indemnified under the DGCL indemnified, reimbursed or other applicable Law or the advanced expenses by, any Acquired Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlementexculpation, compromise or judgment involves non-monetary relief from the payment or receipt of any such amount, would violate or contravene any applicable Legal Requirement; and (c) each D&O Indemnified Party and (ii) shall seek recourse against the D&O Tail prior to seeking recourse against any Acquired Company with respect to any obligation described in this Section 5.5. Under no Indemnifying circumstances shall any D&O Indemnified Party shall be liable for entitled to exculpation, indemnification, reimbursement or advancement of expenses directly from Parent or from any settlement, compromise or consent to the entry Affiliate of any judgment in any Legal Action or investigation effected without its prior written consentParent that is not an Acquired Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Indie Semiconductor, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of Without limiting any threatened or actual Legal Actionadditional rights that any manager, whether civildirector, criminal or administrativeofficer, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (togethertrustee, the “Indemnified Parties”) isemployee, agent, or is threatened to be, made a party based in whole fiduciary may have under any employment or in part on, indemnification agreement or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to under the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severallyOrganizational Documents, from and after the Effective Time, indemnifythe Purchaser Parties, defend jointly and severally, shall: (i) indemnify and hold harmlessharmless each person who is at the date hereof, was previously, or during the period from the date hereof through the date of the Effective Time serving as a manager, director, officer, trustee or fiduciary of the Company, any of its Subsidiaries or any of the Related Entities and acting in its capacity as such or as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) to the fullest extent authorized or permitted or required by applicable Law and required by the Company Organizational Documents (Law, as now or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiarieshereafter in effect, in each case, in effect on the date of this Agreement, against connection with any Claim and any losses, claims, damages, liabilities, costs, reasonable legal Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other expenses charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such Claim; and (including reimbursement ii) promptly pay on behalf of or, within ten (10) Business Days after any request for reasonable legal and other fees and expenses advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification and/or advancement, in each case without the requirement of any bond or investigation. To other security, but subject to the extent permitted Purchaser Parties’ receipt of an undertaking by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses on behalf of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Expenses if it is ultimately determined under applicable Laws or any of the Organizational Documents that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterindemnified); provided, however, that (i) neither Parent nor none of the Purchaser Parties or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party Entity shall be liable for any settlement, compromise amounts paid in settlement effected without Parent’s or the Surviving Entity’s prior written consent (which consent shall not be unreasonably withheld or delayed) and shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties and subject to the entry consent of any judgment Parent, which consent shall not be unreasonably conditioned, delayed or withheld) for all Indemnified Parties in any Legal Action jurisdiction with respect to any single Claim. The indemnification and advancement obligations of the Purchaser Parties pursuant to this Section 7.06(a) shall extend to acts or investigation effected without its prior written consent.omissions occurring at or before the Effective Time and
Appears in 1 contract
Samples: Agreement and Plan of Merger (Boston Capital Real Estate Investment Trust Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event The Company shall (A) indemnify and hold harmless all past and present directors and officers of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of Toreador and its Subsidiaries (togetherin all of their capacities) (x) to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Toreador pursuant to Toreador’s certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the “Indemnified Parties”date hereof with any directors, officers and employees of Toreador and its Subsidiaries and (y) iswithout limitation to clause (x), to the fullest extent permitted by Applicable Law, in each case for acts or is threatened to be, made a party based omissions in whole their capacities as directors and officers occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent (B) include and cause to be maintained in effect in Toreador Surviving Corporation’s (or any successor’s) certificate of incorporation and by-laws 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 Toreador’s certificate of incorporation and by-laws, (C) periodically advance to any such indemnitee its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to clause (c) of this Section 6.13, and subject to the providing by such indemnitee of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such indemnitee is not entitled thereto and (D) 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 Toreador (provided that Toreador Surviving Corporation (eachor 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 the Company or Toreador Surviving Corporation be required pursuant to this Section 6.13(a) to expend in any one year an amount in excess of 300% of the last annual premium paid by Toreador for such insurance prior to the date hereof, the amount of such annual premium being set forth in Section 6.13(a) of the Toreador Disclosure Letter; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Toreador Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. Toreador may extend coverage, effective as of the Effective Time, under Toreador’s D&O Insurance by obtaining a six-year “Indemnifying Party”) willtail” policy prior to the Closing on terms and conditions no less advantageous to the covered persons than Toreador’s existing D&O Insurance, jointly and severallysuch “tail” policy shall satisfy the provisions of this Section 6.13(a). If such “tail” policy has been obtained by Toreador prior to the Closing, from Toreador Surviving Corporation shall maintain such policies in full force and effect and continue to honor Toreador’s obligations thereunder. From and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document will guarantee the obligations of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Toreador Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentthis Section 6.13(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Contribution (Toreador Resources Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In 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 event of any threatened or actual Legal ActionEffective Time, whether civil, criminal asserted or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part claimed prior to, any action at or failure to take action by any such Person in such capacity taken prior to after the Effective Time (including with respect to any action or failure to take action occurring matters arising in connection with the approval of transactions contemplated by this Agreement and Agreement, 84 including the consummation Merger), now existing in favor of the Merger D&O Indemnitees as provided in the Governing Documents of the Company (or the Governing Documents of any of the other transactions contemplated hereby), Parent Company’s Subsidiaries or Affiliates as in effect on the date of this Agreement) or in any Contract shall survive the Merger and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly shall continue in full force and severally, from effect. From and after the Effective Time, Parent and the Surviving Company shall (and Parent shall cause the Surviving Company to) indemnify, defend and hold harmless, and advance expenses to, D&O Indemnitees with respect to any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, Liabilities and amounts paid in settlement in connection with any claim or Action, whether civil, criminal, administrative or investigative, to the extent such claim or Action arises out of or pertains to (i) any act or omission by the D&O Indemnitees in their capacities as such at any time at or prior to the Effective Time or (ii) the Merger, this Agreement and any transactions contemplated hereby, in either case, to the fullest extent permitted or required by applicable Law and required by (A) the Governing Documents of the Company Organizational Documents (or the Governing Documents of any similar organizational document of the Company’s Subsidiaries or Affiliates as in effect on the date of this Agreement), (B) any indemnification agreement of the Company or any of its Subsidiaries), and when Subsidiaries or other applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, as in effect on the date of this Agreement, against which provisions thereafter shall not be amended, repealed or otherwise modified in any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of manner that would adversely affect the final disposition rights thereunder of any Legal Action D&O Indemnitees or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation(C) applicable Law. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Governing Documents of the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees Company and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and its Subsidiaries to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents contain provisions with respect to such Legal Action or investigation. In indemnification, advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the event any Legal Action or investigation is brought against any Indemnified Party, Parent D&O Indemnitees than those set forth in the Governing Documents of the Company and the Surviving Corporation Governing Documents of the Company’s Subsidiaries as of the date of this Agreement, which provisions thereafter shall each use all commercially reasonable efforts to assist not be amended, repealed or otherwise modified in any manner that would adversely affect the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry rights thereunder of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentD&O Indemnitees.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ribbon Communications Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent and the Surviving Corporation will jointly and severally indemnify and hold harmless each director and officer of the Company at or prior to the Effective Time (the “D&O Indemnified Parties”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any threatened Proceeding, whenever asserted, based on or actual Legal Actionarising out of, whether civilin whole or in part, criminal (i) the fact that a D&O Indemnified Party was a director, officer, employee or administrative, including any such Legal Action or investigation in which any present or former director or officer agent of the Company or any of its Subsidiaries Subsidiaries, or (togetherii) acts or omissions by such D&O Indemnified Party in the D&O Indemnified Party’s capacity as a director, officer, employee or agent of the Company or a Subsidiary of the Company or taken at the request of the Company or a Subsidiary of the Company (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee agent, trustee or fiduciary of another Person), in each case under (i) or (ii), at, or at any time before, the “Indemnified Parties”) is, or is threatened to be, made a party based Effective Time (including any Proceeding relating in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or the enforcement of this provision or any other indemnification or advancement right of the other transactions contemplated herebyany D&O Indemnified Party), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by Law. For the Company Organizational Documents (avoidance of doubt, in no event will Parent have any obligations or any similar organizational document of the Company or any of its Subsidiariesliabilities to D&O Indemnified Parties under this Section 5.6(a), and when applicable any indemnity agreements applicable to any such Indemnified Party other than those obligations or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause liabilities that the Surviving Corporation to, promptly advance all out-of-pocket expenses of each will have to D&O Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified Parties under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentthis Section 5.6(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Corindus Vascular Robotics, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from From and after the Effective Time, Parent agrees that it shall, and shall cause the Surviving Corporation to, indemnify, defend and hold harmless, as and to the fullest extent permitted under applicable Law, each current or required by applicable Law former director and required by the Company Organizational Documents (or any similar organizational document officer of the Company or any (determined as of its Subsidiariesthe Effective Time), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, when acting in effect on such capacity or, while a director or officer of the date Company, serving as a director, officer, member, trustee or fiduciary of this Agreementanother entity or enterprise, including a Plan, at the request or benefit of the Company (each, a “D&O Indemnified Party” and, collectively, the “D&O Indemnified Parties”) against any costs or expenses (including attorneys’ fees and expenses), amounts paid in settlement, judgments, fines, losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses damages or liabilities incurred in advance connection with, arising out of or otherwise related to any Legal Proceeding in connection with, arising out of or otherwise related to matters existing or occurring or alleged to have occurred at or prior to the final disposition 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 Legal Action or investigation to each D&O Indemnified Party, and Parent or the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable Law (upon receipt of appropriate undertakings in favor of Parent or the Surviving Corporation to repay such advanced expenses if it is ultimately determined in a final and non-appealable judgment by a court of competent jurisdiction that such D&O Indemnified Party was not entitled to be indemnified pursuant to this sentence). In the event of any such Legal Proceeding, judgments, fines Parent and amounts paid in settlement incurred by such the Surviving Corporation shall cooperate with the D&O Indemnified Party in connection with the defense of any such Legal Action or investigationProceeding. To For a period of six (6) years from the extent permitted by applicable Law and Effective Time, the Company Organizational Documents, Parent Surviving Corporation shall, or and Parent shall cause the Surviving Corporation to, promptly advance all out-of-pocket maintain in effect the exculpation, indemnification and advancement of expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and equivalent to the extent required by provisions of the DGCL or other applicable Law or certificate of incorporation and bylaws of the Company Organizational Documents) that such Indemnified Party undertakes as in effect immediately prior to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents Effective Time with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such Legal Action 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 period shall continue until the disposition of such action or investigationresolution of such claim. In The Surviving Corporation and its Subsidiaries as of the event any Legal Action or investigation is brought against any Indemnified Party, Effective Time shall (and Parent and shall cause the Surviving Corporation shall each use and its Subsidiaries as of the Effective Time to) honor and fulfill in all commercially reasonable efforts to assist respects the obligations of the Company and its Subsidiaries under any indemnification Contracts between any executive, officer or director and the Company in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent effect prior to the entry date of this Agreement that are set forth on Section 6.7(a) of the Company Disclosure Letter (and made available to Parent), and shall not amend, repeal or otherwise modify any such Contracts in any manner that would adversely affect in any respect the rights thereunder of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentParties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Shockwave Medical, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event Buyer shall (i) for a period of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, six years from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, harmless against any all losses, claims, damages, expenses or liabilities, costsand provide advancement of expenses to, reasonable legal all past and other present directors, officers, managers and employees of each of the Acquired Companies (in all of their capacities as such) (“Indemnified Individuals”), to the same extent such persons are indemnified, defended, held harmless or have the right to advancement of expenses as of the date of this Agreement by Seller or any of its Affiliates (including reimbursement for reasonable legal the Acquired Companies) pursuant to the respective charter documents or by-laws (or similar governance document) of Seller or any of its Affiliates (including the Acquired Companies) and other fees and expenses incurred any indemnification agreements in advance of existence on the final disposition of date hereof with any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party Individuals for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with such Legal Action or investigation. To the extent permitted by applicable Law this Agreement and the Company Organizational Documentsconsummation of the transactions contemplated hereby); provided that in the event any claim is asserted or made within such six year period, Parent shall, or all rights hereunder in respect of such claim shall continue until disposition thereof and (ii) cause to be maintained for a period of six years after the Surviving Corporation to, promptly advance all out-of-pocket expenses Effective Time the current policies of each Indemnified Party in connection with any such Legal Action or investigation as such expenses directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Seller and its Affiliates (including reasonable attorneys’ fees the Acquired Companies) covering directors and disbursements) are incurred upon receipt from such Indemnified Party officers of a request therefor; providedthe Acquired Companies (provided that Buyer may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, howeverin the aggregate, (if and no less advantageous to the extent required insured than the current policies maintained by Seller and its Affiliates (including the DGCL or other applicable Law or the Company Organizational DocumentsAcquired Companies)) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action claims arising from facts or investigation. In events that occurred at or before the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterEffective Time; provided, however, that (i) neither Parent nor the Surviving Corporation in no event shall settle, compromise or consent Buyer be required to the entry of any judgment expend in any Legal Action or investigation one year an amount in excess of 300% of the annual premiums currently paid by Seller and its Affiliates (including the Acquired Companies) for such insurance and in which indemnification could be sought by such Indemnified Party hereunder) without provided, further, that if the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.annual 46
Appears in 1 contract
Samples: Purchase Agreement by And (Rockwell Automation Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, the Surviving Corporation shall, and Pensare shall cause the Surviving Corporation and its Subsidiaries to, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an officer or director of the Company or any of its Subsidiaries (the “D&O Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) arising out of or relating to any threatened or actual Legal Action, whether civil, criminal Action based in whole or administrative, including any in part on or arising out of or relating in whole or in part to the fact that such Legal Action person is or investigation in which any present or former was a director or officer of the Company or any of its Subsidiaries (togetherSubsidiaries, whether pertaining to any matter existing or occurring at or prior to the Closing Date and whether asserted or claimed prior to, or at or after, the Closing Date (the “D&O Indemnified PartiesLiabilities”) is), or is threatened to be, made a party including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining relating to this Agreement or the Transactions, in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior each case to the Effective Time full extent permitted under applicable Law (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries)shall, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party Pensare shall cause the Surviving Corporation and the Company or one of its SubsidiariesSubsidiaries to, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such action or investigation proceeding to each D&O Indemnified Party), judgments, fines and amounts paid in settlement incurred by such . Any D&O Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or wishing to claim indemnification under this Section 7.07 shall cause notify the Surviving Corporation to, promptly advance all out-of-pocket expenses upon learning of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt but the failure so to notify shall not relieve a party from such Indemnified Party of a request therefor; provided, however, (if and any liability which it may have under this Section 7.07 except to the extent required by such failure prejudices such party). The parties agree that all rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any such action or suit, existing in favor of the DGCL or other applicable Law or the Company Organizational Documents) that such D&O Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents Parties with respect to such Legal Action or investigation. In matters occurring through the event any Legal Action or investigation is brought against any Indemnified Party, Parent Closing Date shall continue in full force and effect for a period of not less than six years from the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterClosing Date; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent all rights to the entry indemnification in respect of any judgment in any Legal Action D&O Indemnified Liabilities asserted or investigation (and in which indemnification could be sought by made within such Indemnified Party hereunder) without period shall continue until the prior written consent disposition of such D&O Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentLiabilities.
Appears in 1 contract
Samples: Business Combination Agreement (PENSARE ACQUISITION Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time through the sixth anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation and their respective applicable Subsidiaries shall, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any threatened or actual Legal Actiontime prior to the Effective Time was, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former a director or officer of the Company or any of its Subsidiaries a Subsidiary of the Company (togethereach, an “Indemnitee” and, collectively, the “Indemnified PartiesIndemnitees”) iswith respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or is threatened to beat any time prior to, made a party based the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect Transactions), to any action or failure the same extent such Indemnitees are entitled to take action occurring in connection with indemnification as of the approval date of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries)Subsidiaries pursuant to applicable Law, and when applicable any indemnity agreements applicable to any the Company Charter Documents, the organizational documents of such Indemnified Party Subsidiaries or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, indemnification agreements in each case, in effect existence on the date of this AgreementAgreement and made available to Parent prior to the date hereof, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance ii) assume all obligations of the final disposition Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company Charter Documents and the organizational documents of such Subsidiaries as currently in effect; provided, however, that if, at any Legal Action time prior to the sixth anniversary of the Effective Time, any Indemnitee delivers to Parent or investigation to each Indemnified Partythe Surviving Corporation a written notice asserting a claim for indemnification under this Section 5.08(a), judgmentsthen the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. Without limiting the foregoing, fines Parent, from and amounts paid after the Closing until six (6) years from the Effective Time, shall cause, unless otherwise required by Law, the certificate of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Charter Documents, which provisions shall not be amended, repealed or otherwise modified or superseded in any manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from the Closing until six (6) years from date on which the Effective Time occurs, Parent shall, or and shall cause the Surviving Corporation to, promptly advance all out-of-pocket any expenses (including the fees and expenses of each Indemnified Party legal counsel) of any Indemnitee under this Section 5.08 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.08) as incurred to the same extent such Indemnitees are entitled to advancement of expenses as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable Law, the Company Charter Documents, the organizational documents of such Legal Action Subsidiaries or investigation as such expenses (including reasonable attorneys’ fees any indemnification agreements in existence on the date of this Agreement and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; made available to Parent prior to the date hereof, provided, however, (that the individual to whom expenses are advanced provides, if and to the extent required requested by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes Parent, an undertaking to repay such amount advances if it is ultimately shall be determined that such Indemnified Party individual is not entitled to be indemnified under pursuant to this Section 5.08(a). The Surviving Corporation shall reasonably cooperate in good faith in the DGCL defense of any such matters; provided, that requests by Indemnitees or other applicable Law their Representatives to interview Representatives, examine the books and records or access the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and properties of the Surviving Corporation shall each use all commercially be made during normal business hours and upon reasonable efforts to assist in notice and shall not significantly or materially impact the vigorous defense operations of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentCorporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ormat Technologies, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of Without limiting any threatened or actual Legal Action, whether civil, criminal or administrative, including additional rights that any such Legal Action or investigation in which any present or former director or officer may have under any indemnification agreement or under the articles of the Company or any incorporation and bylaws of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severallyMarigold, from and after the Effective Time, indemnifyMontage shall cause the Surviving Corporation or any applicable Subsidiary (collectively, defend the “D&O Indemnifying Parties”) thereto to: (i) indemnify and hold harmlessharmless each person who is at the date hereof, was previously, or during the period from the date hereof through the date of the Effective Time serving as and a director or officer of Marigold or such Subsidiary (collectively, the “D&O Indemnified Parties”) to the fullest extent the Surviving Corporation or any such Subsidiary is so authorized or permitted or required by applicable Law and required by the Company Organizational Documents (Law, as now or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiarieshereafter in effect, in each case, in effect on the date of this Agreement, against connection with any D&O Claim and any losses, claims, damages, liabilities, costs, reasonable legal Claim Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other expenses charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such D&O Claim; and (including reimbursement ii) promptly pay on behalf of or, within ten (10) Business Days after any request for reasonable legal and other fees and expenses advancement, advance to each of the D&O Indemnified Parties, in each case to the fullest extent the Surviving Corporation or the applicable Subsidiary is so authorized or permitted by applicable Law, as now or hereafter in effect, any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Claim Expenses incurred by such D&O Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification and/or advancement, in each case without the requirement of any bond or investigation. To the extent permitted by applicable Law and the Company Organizational Documentsother security, Parent shall, or shall cause but subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each a written undertaking by or on behalf of such D&O Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Claim Expenses if it is ultimately determined under applicable Law that such D&O Indemnified Party is not entitled to be indemnified indemnified. Without limiting any additional rights that any director or officer may have under any indemnification agreement set forth in Section 6.6 of the Marigold Disclosure Letter or under the DGCL or other applicable Law or articles of incorporation and bylaws of Marigold, the Company Organizational Documents D&O Indemnified Parties as a group may retain only one law firm to represent them with respect to each such Legal Action D&O Claim unless there is, under applicable standards of professional conduct, a conflict between the positions of any two or investigationmore D&O Indemnified Parties. In To the event any Legal Action extent authorized or investigation is brought against any Indemnified Partypermitted by applicable Law, Parent the indemnification and advancement obligations of the Surviving Corporation pursuant to this Section 6.6(a) shall each use extend to acts or omissions occurring at or before the Effective Time and any D&O Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement, the Merger and the consummation of the other transactions contemplated by this Agreement, including the consideration and approval thereof and the process undertaken in connection therewith and any D&O Claim relating thereto), and all commercially reasonable efforts rights to assist in indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director or officer of Marigold or any of the vigorous defense Marigold Subsidiaries after the date hereof and shall inure to the benefit of such matter; providedPerson’s heirs, howeversuccessors, that executors, and personal and legal Representatives. As used in this Section 6.6(a): (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term “
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In For a period of six (6) years from and after the event Closing Date, Purchaser will and will cause the Company to (i) indemnify and hold harmless (and release from any liability to Purchaser or the Company) each Person who on or prior to the Closing Date was a director, manager or officer of the Company and Seller (each, an "Indemnitee") against and from all (A) attorneys' fees and all other costs, charges, and expenses (collectively, "D&O Expenses") paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing to defend, be a witness in, or participate in any threatened threatened, pending, or actual Legal Actioncompleted Action based on, whether civilarising out of, criminal or administrativerelating to the fact that such Indemnitee is or was a director, including any such Legal Action or investigation in which any present or former director manager, or officer of the Company or any Seller arising out of its Subsidiaries (together, the “Indemnified Parties”) is, acts or is threatened to be, made a party based in whole omissions occurring on or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time Closing (including with in respect to any action of acts or failure to take action occurring omissions in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any ) (a "D&O Indemnifiable Claim") and (B) losses, claims, damages, liabilitiesjudgments, costsor amounts paid in settlement (collectively, reasonable legal "D&O Costs") in respect of any D&O Indemnifiable Claim and other expenses (including reimbursement for reasonable legal and other fees and expenses ii) pay on an as-incurred basis all D&O Expenses in advance of the final disposition of any Legal Action or investigation that is the subject of the right to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by indemnification; provided that the Person to whom such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) D&O Expenses are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes be advanced provides an undertaking to repay such amount advances if it is ultimately determined that such Indemnified Party Person is not entitled to be indemnified indemnification. Notwithstanding anything in this Agreement to the contrary, the obligations of Purchaser and Company under the DGCL or other applicable Law or the Company Organizational Documents this Section 6.4 with respect to such Legal any Action or investigation. In will continue in effect until the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense final resolution of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentAction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Inotiv, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws, the Company Operating Partnership Agreement or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Company’s Subsidiaries, from and after the REIT Merger Effective Time, Parent, the Parent Operating Partnership, the Surviving Entity and the Surviving Partnership (the “Indemnifying Parties”), jointly and severally, shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the date of the REIT Merger Effective Time serving as a director, whether civilofficer, criminal trustee, manager, employee, agent, or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company and acting in its capacity as such or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (togetherwithin the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable Law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim and any losses, claims, damages, liabilities, costs, Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of any thereof) resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or arising permitted by applicable Law, as now or hereafter in whole or in part out of, or pertaining in whole or in part toeffect, any action Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating with respect to take action by any Claim in advance of the final disposition of such Person in such capacity taken prior Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security), but subject to (x) receipt of documentation by Parent and Surviving Entity reasonably evidencing the need for such advancement, and (y) Parent’s or the Surviving Entity’s, as applicable, receipt of an undertaking by or on behalf of such Indemnified Party, to repay such Expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified); provided, however, that none of the Indemnifying Parties shall be liable for any amounts paid in settlement effected without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) and shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single Claim except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; provided, further, that the Indemnifying Parties shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by the Indemnifying Parties of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. The indemnification and advancement obligations of the Indemnifying Parties pursuant to this Section 7.06(a) shall extend to acts or omissions occurring at or before the Partnership Merger Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or Mergers and the Contemplated Transactions, including the consideration and approval thereof and the process undertaken in connection therewith and any of the other transactions contemplated herebyClaim relating thereto), Parent and the Surviving Corporation (eachall rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director, an “Indemnifying Party”) willofficer, jointly and severallytrustee, from and after the Effective Timeemployee, indemnifyagent, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document fiduciary of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on Subsidiaries after the date hereof and shall inure to the benefit of this Agreementsuch person’s heirs, against any losses, claims, damages, liabilities, costs, reasonable executors and personal and legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance representatives. None of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation Indemnifying Parties shall settle, compromise or consent to the entry of any judgment in any Legal actual or threatened Action or investigation (and in respect of which indemnification has been or could be sought by such Indemnified Party hereunder) without hereunder unless the prior written consent of such Indemnified Party if Indemnifying Parties agree to honor the indemnification obligations hereunder and to the extent unless such settlement, compromise or judgment involves non-monetary relief from includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents thereto. Any Indemnified Party wishing to claim indemnification under this Section 7.06, upon learning of any such Claim, shall promptly notify the Company and, after the REIT Merger Effective Time, the Surviving Entity; provided that the failure to so notify shall not affect the obligations of the Company and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent the Surviving Entity except to the entry of any judgment in any Legal Action or investigation effected without its prior written consentextent, if any, such failure to promptly notify materially and adversely prejudices such party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (GMH Communities Trust)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under any of the event of any threatened Organizational Documents or actual Legal Actionthis Agreement, whether civilfrom and after the Company Merger Effective Time, criminal the Surviving Company shall (i) indemnify and hold harmless each person who is at the date hereof, was previously, or administrative, including any such Legal Action or investigation in which any present or former during the period from the date hereof through the Company Merger Effective Time serving as a director or officer of the Company or any of its the Company Subsidiaries (togethercollectively, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent authorized or permitted or required by applicable Law Law, as now or hereafter in effect, in connection with any Claim and required by the Company Organizational Documents any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or any similar organizational document payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom, and (ii) promptly pay on behalf of each of the Company Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any of its Subsidiaries)Indemnifiable Expenses incurred in defending, and when applicable serving as a witness with respect to or otherwise participating in any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Indemnifiable Expenses (as hereinafter defined) incurred by such Indemnified Party in connection with enforcing any rights with respect to such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documentsindemnification and/or advancement, Parent shall, or shall cause the Surviving Corporation to, promptly advance including all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party expenses, in each case without the requirement of a request therefor; provided, however, (if and to the extent required by the DGCL any bond or other applicable Law security, but subject to Parent’s or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL Surviving Company’s, as applicable, receipt of an undertaking by or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent on behalf of such Indemnified Party if and to the extent repay such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.Indemnifiable
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time and until the sixth anniversary of the Effective Time and for so long thereafter as any threatened claim for indemnification asserted on or actual Legal Actionprior to such date has not been fully adjudicated, whether civilParent and the Surviving Corporation (each, criminal an "Indemnifying Party") shall indemnify, defend and hold harmless each person who is now, or administrativehas been at any time prior to the date hereof or who becomes prior to the Effective Time, including any such Legal Action or investigation in which any present or former a director or officer of the Company or any of its Subsidiaries (togetherthe "Indemnified Parties") against (i) all losses, claims, damages, costs and expenses (including attorneys' fees), liabilities, judgments and settlement amounts that are paid or incurred in connection with any claim, action, suit, proceeding or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, or arises in whole or in part out of, the “fact that such Indemnified Parties”Party is or was a director or officer of the Company or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Effective Time ("Indemnified Liabilities"), and (ii) is, or is threatened to be, made a party all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior each case to the Effective Time (including full extent a corporation is permitted under applicable law to indemnify its own directors or officers, as the case may be; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld; and provided, further, that no Indemnifying Party shall be liable for any Indemnified Liabilities which occur as a result of the gross negligence or willful misconduct of any Indemnified Party or conduct with respect to which the Company would not be permitted to indemnify the Indemnified Party under the Company's Certificate of Incorporation on the date hereof. Without limiting the foregoing, in the event that any action such claim, action, suit, proceeding or failure investigation is brought against any Indemnified Party (whether arising prior to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and (w) the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other Indemnifying Parties will pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such claim, action, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To to the full extent permitted by applicable Law and law; provided that the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket person to whom expenses of each Indemnified Party in connection with are advanced provides any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent undertaking required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes law to repay such amount advance if it is ultimately determined that such Indemnified Party person is not entitled to be indemnified under indemnification; (x) the DGCL or other applicable Law or Indemnified Parties shall retain counsel reasonably satisfactory to the Company Organizational Documents with respect Indemnifying Parties; (y) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent final sentence of this paragraph) promptly as statements therefor are received; and (z) the Surviving Corporation Indemnifying Parties shall each use all commercially reasonable efforts to assist in the vigorous defense of any such matter. Any Indemnified Party wishing to claim indemnification under this Section, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Indemnifying Parties, but the failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have under this paragraph except to the extent such failure irreparably prejudices such Indemnifying Party. The Indemnified Parties as a group may retain only one law firm (together with appropriate local counsel) 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 Indemnified Parties in which case the Indemnified Parties may retain more than one law firm; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party Parties shall be liable for any settlement, compromise or consent required to pay the entry reasonable fees and expenses of any judgment in any Legal Action or investigation effected without its prior written consentonly one law firm as determined by the Indemnifying Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Anthracite Capital Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened Parent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or actual Legal Action, whether civil, criminal omissions occurring at or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Company Merger Effective Time, whether asserted or claimed prior to, at or after the Company Merger Effective Time (including with respect to any action or failure to take action occurring matters arising in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), now existing in favor of the current or former directors, officers, managers or employees (“D&O Indemnified Parties”), as the case may be, of the Company or its Subsidiaries (including any member of the Subsidiary Adviser Group) as provided in their respective organizational documents as in effect on the date of this Agreement or in any Contract shall survive the Mergers and shall continue in full force and effect. Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, shall indemnify, defend and hold harmless, and advance expenses to D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Company Merger Effective Time (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent that the Company or its Subsidiaries (including any member of the Subsidiary Adviser Group) would be permitted by Applicable Law and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document documents of the Company or its Subsidiaries (including any member of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, Subsidiary Adviser Group) as in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim. Parent nor the Surviving Corporation shall settlecause its organizational documents to contain provisions with respect to indemnification, compromise or consent advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the entry D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ (including the members of any judgment the Subsidiary Adviser Group’s) organizational documents as of the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any Legal Action or investigation (and in which indemnification could be sought by such manner that would adversely affect the rights thereunder of the D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentParties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Closing, in the case of any threatened or actual Claim or Legal Action, whether civil, criminal or administrativeProceeding, including any such Claim or Legal Action Proceeding by a Third Party or investigation by or in the right of the Company or any of its Subsidiaries, in which any present individual who is as of the Closing Date or former was at any time on or after the date hereof a director or officer of the Company or any of its Subsidiaries (together, the a “D&O Indemnified PartiesParty”) is, or is threatened to be, made a party based in whole by reason of the fact that such D&O Indemnified Party is or in part onwas, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time Closing Date, (including with respect to any action x) a director, officer, manager, employee or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document agent of the Company or any of its Subsidiaries)Subsidiaries or (y) serving as a director, and when applicable any indemnity agreements applicable to any such Indemnified Party officer, manager, employee or any Contract between an Indemnified Party and agent of another corporation, partnership, joint venture, trust or other enterprise at the request of the Company or one any of its SubsidiariesSubsidiaries (whether such Claim or Legal Proceeding arises before, in on or after the Closing Date), the Purchaser shall, and shall cause the Company to, indemnify and hold harmless, to the fullest extent permitted by Law, each case, in effect on the date of this Agreement, such D&O Indemnified Party against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines Losses and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Claim or Legal Action Proceeding except to the extent that the facts and circumstances which gave rise to such Losses, amounts paid, Claim or investigation Legal Proceeding include actions or omissions which involve intentional misconduct or fraud by such D&O Indemnified Party. In the case of any such Claim or Legal Proceeding with respect to which the Purchaser or the Company is required to provide indemnification hereunder, (i) the Purchaser or the Company (as specified by the Purchaser) may, at its election, assume the defense of such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such matter, in which case, any D&O Indemnified Party may participate, at its own expense and through legal counsel of a request thereforits choice, in any such Claim or Legal Proceeding; provided, however, (that if and to the extent required by the DGCL or other applicable Law Purchaser or the Company Organizational Documents) that fails to assume such defense or, under applicable standards of professional conduct, there exists a conflict of interest on any significant issue between the Purchaser and the Company, on the one hand, and any of the D&O Indemnified Party undertakes Parties, on the other hand, the D&O Indemnified Parties may retain counsel satisfactory to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under them, and the DGCL or other applicable Law Purchaser or the Company Organizational Documents with respect to shall pay all reasonable fees and expenses of such Legal Action or investigation. In counsel for the event any Legal Action or investigation is brought against any D&O Indemnified PartyParties promptly as statements therefor are received and (ii) the Purchaser shall, Parent and shall cause the Surviving Corporation shall each Company to, use all commercially reasonable efforts to assist in the vigorous defense of any such matter; provided, however, that (i) neither Parent the Purchaser nor the Surviving Corporation shall settleCompany, compromise or consent to as the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlementcase may be, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation settlement effected without its prior written consentconsent (which consent shall not be unreasonably withheld).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severallyshall, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by or the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to 49 repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall not be liable for any settlement, compromise or settlement effected without the Surviving Corporation’s prior written consent and shall not be obligated to pay the entry fees and expenses of any judgment more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any Legal Action jurisdiction with respect to any single such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Stiefel Laboratories, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement with the Company Group or its Affiliates or employee benefit plan, from the Closing through the sixth (6th) anniversary of the date on which the Closing occurs, the Acquiror shall, and shall cause the Company and each member of the Company Group, to the maximum extent permitted by applicable Law, to indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, manager or employee of New DN or the Company Group (the “D&O Indemnified Parties”), against all Losses, incurred in connection with any Action arising out of or pertaining to (i) the fact that the D&O Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of New DN or the Company Group or (ii) matters existing or occurring at or prior to the Closing (including this Agreement, the other Transaction Agreements and the transactions and actions contemplated hereby and thereby), whether asserted or claimed prior to, at or after the Closing, to the fullest extent permitted under applicable Law. In the event of any threatened or actual Legal such Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”x) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such each D&O Indemnified Party or any Contract between an Indemnified Party and the Company or one will be entitled to advancement of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition defense of any Legal Action from the Acquiror or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause Group within ten (10) Business Days of receipt by the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt Acquiror from such the D&O Indemnified Party of a request therefor; provided, howeverthat any Person to whom expenses are advanced provides an undertaking, (if and only to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes Company’s organizational documents, to repay such amount advances if it is ultimately determined that such Indemnified Party Person is not entitled to be indemnified under indemnification, (y) neither the DGCL or other applicable Law or Acquiror nor its Affiliates (including the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (iGroup) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent ), unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such D&O Indemnified Party from all Liability arising out of such Action or such D&O Indemnified Party otherwise consents, and (z) the Acquiror and its Affiliates (including the Company Group) shall cooperate in the defense of any such matter. (b) The Acquiror shall cause the Company to indemnify and reimburse the Sellers for the period prior to the Closing to the extent the Company’s Organizational Documents provide for such indemnification and reimbursement. 31 (c) The governing documents of each member of the Company Group shall contain provisions no less favorable with respect to indemnification and exculpation of the Sellers and former or present officers, directors, managers and employees than are set forth in the governing documents of such member of the Company Group as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Closing in any manner that would adversely affect the rights thereunder of any such individuals. (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing) is made against any D&O Indemnified Party on or prior to the sixth anniversary of the Closing, the provisions of this Section 6.10 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) In the event that the Acquiror or any member of the Company Group or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) no Indemnifying Party transfers or conveys all or a majority of its properties and assets to any person, then, and in each such case, proper provision shall be liable for any settlementmade so that the successors and assigns of the Acquiror or such member of the Company Group, compromise or consent as the case may be, shall succeed to the entry obligations set forth in this Section 6.10. In addition, no member of the Company Group shall distribute, sell, transfer or otherwise dispose of any judgment of its assets in a manner that would reasonably be expected to render the Acquiror or any Legal Action member of the Company Group unable to satisfy its obligations under this Section 6.10. (f) This Section 6.10 is intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which a D&O Indemnified Party is entitled, whether pursuant to law, contract or investigation effected without its prior written consent.otherwise. SECTION 6.11
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal civil or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company Parent or any of its Subsidiaries (together, the “Indemnified Parties”"INDEMNIFIED PARTIES") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and (the Surviving Corporation (each, an “Indemnifying Party”"INDEMNIFYING PARTY") will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim Action, subject to or investigation. To the extent permitted Parent's receipt of an undertaking by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall will not be liable for any settlementsettlement effected without Parent's prior written consent (which will not be unreasonably delayed or withheld) and will not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single such Action, compromise or consent except to the entry extent that two or more of any judgment such Indemnified Parties have conflicting interests in any Legal Action the outcome of such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Harbinger Capital Partners Master Fund I, Ltd.)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and For six years after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmlessharmless each person who is now, as and or has been at any time prior to the fullest extent permitted date hereof or required by applicable Law and required by who becomes prior to the Company Organizational Documents (Effective Time, an officer or any similar organizational document director of the Company Westport, Belco or their respective Subsidiaries or an employee of Westport, Belco or any of its Subsidiaries), and when applicable their respective Subsidiaries who acts as a fiduciary under any indemnity agreements applicable to any such of Westport's Benefit Plans or Belco's Benefit Plans (each an "Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, Party") against any all losses, claims, damages, liabilities, costs, reasonable legal fees and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance disbursements of the final disposition of any Legal Action or investigation to each Indemnified Party), counsel and judgments, fines fines, losses, claims, liabilities and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with (provided that any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it settlement is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents effected with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of the Surviving Corporation, which will not be unreasonably withheld)) arising in whole or in part out of actions or omissions in their capacity as such Indemnified Party if and occurring at or prior to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent Effective Time to the entry full extent permitted under Nevada law (or the laws of such other state in which the Surviving Corporation may subsequently be domesticated) or the Surviving Corporation's articles of incorporation and bylaws and Westport's and Belco's written indemnification agreements in effect at the date hereof, including provisions therein relating to the advancement of expenses incurred in the defense of any judgment action or suit; provided, that in the event any Legal Action claim or investigation effected without its prior written consent.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 disposition of any and all such claims; and provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set
Appears in 1 contract
Samples: Agreement and Plan of Merger (Belco Oil & Gas Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In After the event Closing, the Buyer shall and shall cause the Sold Companies and the Subsidiaries to (i) indemnify and hold harmless, and provide advancement of expenses to, all employees of any threatened or actual Legal Action, whether civil, criminal or administrativeof the Sold Companies and the Subsidiaries as of the Closing (in all of their capacities with the Sold Companies and the Subsidiaries, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (togetheras officers and directors thereof, collectively, the “Indemnified PartiesIndemnitees”) is(A) to the same extent such Indemnitees are indemnified or have the right to advancement of expenses as of the date hereof by the Sold Companies and the Subsidiaries pursuant to their respective organizational documents and indemnification agreements, if any, in existence on the date hereof with such Indemnitees, and (B) without limitation to clause (A), to the fullest extent permitted by law, in each case for acts or is threatened to be, made a party based in whole omissions occurring at or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time Closing (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) include and cause to be maintained in effect in the Sold Companies’ and the Subsidiaries’ (or any successor’s) organizational documents after the Closing and for a period of six years, provisions regarding elimination of liability of directors, indemnification and advancement of expenses which are, in the aggregate, no Indemnifying Party less advantageous to the Indemnitees than the corresponding provisions contained in the organizational documents of the Sold Companies and the Subsidiaries as of the date hereof. The obligations of the Buyer, the Sold Companies and the Subsidiaries under this Section 5.14(a) shall not be terminated or modified in such a manner so as to adversely affect of the Indemnitees to whom this Section 5.14(a) applies without the consent of such Indemnitee (it being expressly agreed that the Indemnitees shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentthird party beneficiaries hereof).
Appears in 1 contract
Samples: Purchase Agreement and Plan of Merger (Walter Industries Inc /New/)
Directors’ and Officers’ Indemnification and Insurance. (a) In The Buyer agrees to indemnify the event of any threatened or actual Legal Actionpresent and former directors, whether civilofficers, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer employees and agents of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement Seller and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation each Seller Subsidiary (each, an “Indemnifying Party”"INDEMNIFIED PERSON") will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Applicable Law and required by the Company Organizational Documents (hold them harmless from any Losses suffered or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents Persons with respect to all acts and omissions arising out of such Legal Action Indemnified Persons' services as officers, directors, employees or investigation. In agents of the event Seller or any Legal Action of the Seller Subsidiaries or investigation is brought against as trustees or fiduciaries of any Benefit Plan, or otherwise on behalf of, the Seller or any Seller Subsidiary, occurring on or prior to the Closing Date, including the transactions contemplated by this Agreement and the Shareholder Litigation, to the same extent and in the same manner that any Indemnified PartyPerson has or would have had the benefit of any right to indemnification pursuant to the Dissolution Plan, Parent the certificate of incorporation or by-laws or similar organizational documents of the Seller and each Seller Subsidiary as in effect on or prior to the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that Closing Date. The Buyer hereby covenants and agrees (i) neither Parent nor the Surviving Corporation shall settlenot to amend, compromise alter or consent to the entry of any judgment waive in any Legal Action adverse respect such right to indemnification as set forth in the certificate of incorporation or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without by-laws or similar organizational documents of each Seller Subsidiary for a period of not less than six years following the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party Closing Date and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to notify the entry Trustees promptly of any judgment in claim, action, suit or proceeding against any Legal Action or investigation effected without its prior written consentIndemnified Person of which the Buyer has knowledge for which coverage may be available under any applicable policy of insurance.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In ------------------------------------------------------ Following the event Effective Time, New Parent and the Conoco Surviving Corporation shall (i) jointly and severally indemnify and hold harmless, and provide advancement of any threatened or actual Legal Actionexpenses to, whether civilall past and present directors, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer officers and employees of the Company or any of Conoco and its Subsidiaries (togetherin all of their capacities) (A) to the same extent such individuals are indemnified or have the right to advancement of expenses as of the date of this Agreement by Conoco pursuant to the Restated Certificate of Incorporation and By-Laws of Conoco and indemnification agreements, if any, in existence on the “Indemnified Parties”) isdate hereof with, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out for the benefit of, any directors, officers and employees of Conoco and its Subsidiaries and (B) without limitation to subclause (A) above, to the fullest extent permitted by law, in each case for acts or pertaining in whole omissions occurring at or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent (ii) include and cause to be maintained in effect in the Certificate of Incorporation and By-Laws of the Conoco Surviving Corporation (each, an “Indemnifying Party”or any successor to the Conoco Surviving Corporation) will, jointly and severally, from and for a period of six years after the Effective Time, indemnifyprovisions regarding elimination of liability of directors, defend indemnification of officers, directors and hold harmlessemployees and advancement of expenses that are, as and in the aggregate, no less advantageous to the fullest extent permitted or required intended beneficiaries than the corresponding provisions contained in the current Restated Certificate of Incorporation and By-Laws of Conoco 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 and required by the Company Organizational Documents Conoco (provided that New Parent (or any similar organizational document successor thereto) may substitute -------- therefor one or more policies of at least the Company or any of its Subsidiaries), same coverage and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party amounts containing terms and the Company or one of its Subsidiariesconditions that are, in each casethe aggregate, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and no less advantageous to the extent required by the DGCL or other applicable Law or the Company Organizational Documentsinsured) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action claims arising from facts or investigation. In events that occurred on or before the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterEffective Time; provided, however, that (i) neither Parent nor in no event -------- ------- shall the Conoco Surviving Corporation be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by Conoco for such insurance; and, provided further that if the annual premiums of such -------- ------- insurance coverage exceed such amount, the Conoco Surviving Corporation shall settle, compromise or consent obtain a policy with the greatest coverage available for a cost not exceeding such amount. Notwithstanding any foregoing provision to the entry contrary, the treatment of any judgment past and present directors, officers, and employees of Conoco and its Subsidiaries with respect to elimination of liability, indemnification, advancement of expenses and liability insurance under this Section 6.7(a) shall be, in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and aggregate, no less advantageous to the extent such settlementintended beneficiaries thereof than the corresponding treatment of the past and present directors, compromise or judgment involves non-monetary relief from such Indemnified Party officers and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry employees of any judgment in any Legal Action or investigation effected without Phillips and its prior written consentSubsidiaries under Section 6.7(b).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Phillips Petroleum Co)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation investigation, in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severallyshall, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by or the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall not be liable for any settlement, compromise or settlement effected without the Surviving Corporation’s prior written consent and shall not be obligated to pay the entry fees and expenses of any judgment more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any Legal Action jurisdiction with respect to any single such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Barrier Therapeutics Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, the Surviving Corporation (the "Indemnifying Party") shall until the third anniversary of the ------------------ Effective Time indemnify, defend and hold harmless each person who is now, or has been at any threatened time prior to the date hereof or actual Legal Actionwho becomes prior to the Effective Time, whether civila director, criminal officer, employee or administrative, including any such Legal Action or investigation in which any present or former director or officer agent of the Company or any of its Subsidiaries (togethereach, an "Indemnified Party") against (i) all losses, ----------------- claims, damages, costs and expenses (including attorneys' fees), liabilities, judgments and settlement amounts that are paid or incurred in connection with any claim, action, suit, proceeding or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, or arises in whole or in part out of, the “fact that such Indemnified Parties”Party is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or in the case of a present or former director, officer or employee of the Company or a Subsidiary, a fiduciary of any employee benefit plan or arrangement of the Company or any of its Subsidiaries and, in either case relates to or arises out of any action or omission occurring at or prior to the Effective Time ("Indemnified Liabilities"), and (ii) is, or is threatened to be, made a party all Indemnified ----------------------- Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and or the consummation of the Merger or any of the other transactions contemplated hereby), Parent and in each case to the Surviving Corporation full extent a corporation is permitted under applicable law to indemnify its own directors, officers, employees or agents, as the case may be; provided that no Indemnifying Party shall be liable for any settlement of -------- any claim effected without its written consent, which consent shall not be unreasonably withheld. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (each, an “Indemnifying Party”) will, jointly and severally, from and whether arising prior to or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified (w) the Indemnifying Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other will pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such claim, action suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To to the full extent permitted by applicable Law and law provided that the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket person to whom expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes advanced provides an undertaking to repay such amount advance if it is ultimately determined that such Indemnified Party person is not entitled to be indemnified under indemnification; (x) the DGCL or other applicable Law or Indemnified Parties shall retain counsel reasonably satisfactory to the Company Organizational Documents with respect Indemnifying Parties; (y) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent final sentence of this paragraph) promptly as statements therefor are received; and (z) the Surviving Corporation Indemnifying Parties shall each use all commercially reasonable efforts to assist in the vigorous defense of any such matter; provided. Any Indemnified Party wishing to claim indemnification under this Section, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry upon learning of any judgment in such claim, action, suit, proceeding or investigation, shall notify the Indemnifying Party, but the failure so to notify an Indemnifying Party shall not relieve it from any Legal Action or investigation (and in liability which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and it may have under this paragraph except to the extent such settlementfailure irreparably prejudices such party. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for under applicable standards of professional conduct, a conflict on any settlement, compromise or consent to significant issue between the entry positions of any judgment in any Legal Action two or investigation effected without its prior written consentmore Indemnified Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Danielson Holding Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Time, Parent and the Surviving Corporation (each, an the “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document document) of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause subject to the Surviving Corporation to, promptly advance all out-of-pocket expenses Corporation’s receipt of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from an undertaking by such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount legal and other fees and expenses paid in advance if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matterLaw; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall will not be liable for any settlementsettlement effected without the Surviving Corporation’s prior written consent and will not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single such claim, compromise action, suit, proceeding or consent investigation, except to the entry extent that two or more of any judgment such Indemnified Parties shall have conflicting interests in any Legal Action the outcome of such claim, action, suit, proceeding or investigation effected without its prior written consentinvestigation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Uici)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Subsidiaries, from and after the Effective Date, Parent and Surviving LLC shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the Effective Date serving as a director, whether civilofficer, criminal trustee, or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (togetherwithin the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of such judgments, fines, penalties or arising amounts paid in whole settlement) resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable law, as now or hereafter in part out of, or pertaining in whole or in part toeffect, any action Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to take action the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Person indemnification and/or advancement, in each case without the requirement of any bond or other security (but subject to Parent’s or Surviving LLC’s, as applicable, receipt of a written undertaking by or on behalf of such capacity taken prior Indemnified Party, if required by applicable Law, to repay such Expenses if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified). The indemnification and advancement obligations of Parent and Surviving LLC pursuant to this Section 7.06(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), Parent and the Surviving Corporation (eachall rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director, an “Indemnifying Party”) willofficer, jointly and severallytrustee, from and after the Effective Timeemployee, indemnifyagent, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document fiduciary of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on Subsidiaries after the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal hereof and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and inure to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense benefit of such matter; providedperson’s heirs, however, that executors and personal and legal representatives. As used in this Section 7.06(a): (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Heritage Property Investment Trust Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any rights that any manager, director, executive officer or employee of Contributor or of its Affiliates may have under any indemnification agreement or the event Organizational Documents of Contributor or as otherwise afforded by applicable Law (including promptly advancing expenses as incurred to the fullest extent permitted under applicable Law), all of which shall survive the Closing, anything to the contrary contained in any Transaction Document notwithstanding, or under the Organizational Documents of Parent or the Contributee, in addition to, and not in limitation of any threatened or actual Legal Actionother indemnity rights contained in any Transaction Document, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of from and after the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby)Closing Date, Parent and the Surviving Corporation (each, an “Indemnifying Party”) willContributee shall, jointly and severally, from and after the Effective Time, indemnify, defend indemnify and hold harmlessharmless the current or former managers, directors, executive officers or employees of Contributor and its subsidiaries and Affiliates acting in their capacity as and such (collectively, the “D&O Indemnified Parties”) to the fullest extent authorized or permitted under applicable Law, as now or required hereafter in effect, for acts or omissions by applicable Law such D&O Indemnified Parties occurring prior to the Closing Date. Without limiting the foregoing, Parent and required by the Company Contributee shall use reasonable efforts to, and shall use reasonable efforts to cause NewCo and each Contributed Subsidiary to, for a period of not less than six (6) years after the Closing Date, (i) maintain provisions in its Organizational Documents concerning the indemnification and exculpation (or any similar organizational document including provisions relating to expense advancement) of D&O Indemnified Parties that are no less favorable to those Persons than the provisions of the Company or any Organizational Documents of Contributor and its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiariesas applicable, in each case, in effect on as of the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlementnot to amend, compromise repeal or consent to the entry of any judgment otherwise modify such provisions in any Legal Action or investigation effected without its prior written consentrespect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
Appears in 1 contract
Samples: Contribution Agreement (Rw Holdings NNN Reit, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, the Surviving Corporation (the "Indemnifying Party") shall, as to any claim or claims made or asserted (even if not resolved) prior to the third anniversary of the Effective Time, indemnify, defend and hold harmless each person who is now, or has been at any threatened time prior to the date hereof or actual Legal Actionwho becomes prior to the Effective Time a director, whether civilofficer, criminal employee or administrative, including any such Legal Action or investigation in which any present or former director or officer agent of the Company or any of its Subsidiaries (togethereach, an "Indemnified Party") against (i) all losses, claims, damages, costs and expenses (including attorneys' fees), liabilities, judgments and settlement amounts that are paid or incurred in connection with any claim, action, suit, proceeding, or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Effective Time) that is based in whole or in part on, or arises in whole or in part out of, the “fact that such Indemnified Parties”Party is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or in the case of a present or former director, officer or employee of the Company or a Subsidiary, a fiduciary of any employee benefit plan or arrangement of the Company or any of its Subsidiaries and, in either case relates to or arises out of any action or omission occurring at or prior to the Effective Time ("Indemnified Liabilities"), and (ii) is, or is threatened to be, made a party all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and or the consummation of the Merger or any of the other transactions contemplated hereby), Parent and in each case to the Surviving Corporation full extent a corporation is permitted under applicable law to indemnify its own directors, officers, employees or agents, as the case may be; provided that no Indemnifying Party shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Without limiting the foregoing in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (each, an “Indemnifying Party”) will, jointly and severally, from and whether arising prior to or after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified (w) the Indemnifying Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other will pay expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action such claim, action, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To to the full extent permitted by applicable Law and law provided that the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket person to whom expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes advanced provides an undertaking to repay such amount advance if it is ultimately determined that such Indemnified Party person is not entitled to be indemnified under indemnification; (x) the DGCL or other applicable Law or Indemnified Parties shall retain counsel reasonably satisfactory to the Company Organizational Documents with respect Indemnifying Parties; (y) the Indemnifying Parties shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent final sentence of this paragraph) promptly as statements therefor are received; and (z) the Surviving Corporation Indemnifying Parties shall each use all commercially reasonable efforts to assist in the vigorous defense of any such matter; provided. Any Indemnified Party wishing to claim indemnification under this Section, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry upon learning of any judgment in such claim, action, suit, proceeding or investigation, shall notify the Indemnifying Party, but the failure so to notify an Indemnifying Party shall not relieve it from any Legal Action or investigation (and in liability which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and it may have under this paragraph except to the extent such settlementfailure irreparably prejudices such party. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for under applicable standards of professional conduct, a conflict on any settlement, compromise or consent to significant issue between the entry positions of any judgment in any Legal Action two or investigation effected without its prior written consentmore Indemnified Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Progressive Corp/Oh/)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, Parent shall cause the Surviving Corporation to, and the Survivng Corporation shall, indemnify, defend and hold harmless, to the fullest extent permitted by Law to indemnify its own directors and officers, 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 threatened of its subsidiaries (the “Indemnified Parties”) against (i) any and all losses, claims, damages, costs, expenses, fines, liabilities or actual Legal Action, whether civil, criminal or administrativejudgments, including any amounts that are paid in settlement with the 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 Legal Action person is or investigation in which any present or former was a director or officer of the Company or any of its Subsidiaries (togethersubsidiaries 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 PartiesLiabilities”), and (ii) is, or is threatened to be, made a party all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and or the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the . The Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document will pay all expenses of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such each Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal such Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the fullest extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly to advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes an undertaking to repay such amount advances if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to be indemnified under indemnification. Without limiting the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In foregoing, in the event any Legal Action or investigation is brought against any Indemnified Party, Parent Party (whether arising before or after the Effective Time): (i) the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to the Surviving Corporation; (ii) the Surviving Corporation shall each pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; and (iii) the Surviving Corporation shall use all commercially its reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry not be liable for any settlement of any judgment in any Legal Action effected without its written consent, which consent shall not be unreasonably withheld or investigation (and in which indemnification could be sought by such delayed. Any Indemnified Party hereunder) without wishing to claim indemnification under this Section 6.06, upon learning of any such Action shall notify the prior written consent of such Indemnified Party if and 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 settlementfailure materially prejudices the Surviving Corporation), compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent deliver to the entry Surviving Corporation an undertaking of the kind described above. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel in each applicable jurisdiction if reasonably required) 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 judgment in any Legal Action two or investigation effected without its prior written consentmore Indemnified Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Zenith National Insurance Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of Without limiting any threatened or actual Legal Action, whether civil, criminal or administrative, including additional rights that any such Legal Action or investigation in which any present or former director or officer may have under any indemnification agreement or under the articles of the Company or any incorporation and bylaws of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severallyMarigold, from and after the Second Merger Effective Time, indemnifyNew Holdco shall cause the Marigold Surviving Corporation or any applicable Subsidiary (excluding the Marigold Sharing Company and the Montage Sharing Companies) (collectively, defend the “D&O Indemnifying Parties”) thereto to: (i) indemnify and hold harmlessharmless each person who is at the date hereof, was previously, or during the period from the date hereof through the date of the Second Merger Effective Time serving as and a director or officer of Marigold or such Subsidiary (collectively, the “D&O Indemnified Parties”) to the fullest extent the Marigold Surviving Corporation or any such Subsidiary is so authorized or permitted or required by applicable Law and required by the Company Organizational Documents (Law, as now or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiarieshereafter in effect, in each case, in effect on the date of this Agreement, against connection with any D&O Claim and any losses, claims, damages, liabilities, costs, reasonable legal Claim Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other expenses charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such D&O Claim; and (including reimbursement ii) promptly pay on behalf of or, within ten (10) Business Days after any request for reasonable legal and other fees and expenses advancement, advance to each of the D&O Indemnified Parties, in each case to the fullest extent the Marigold Surviving Corporation or the applicable Subsidiary is so authorized or permitted by applicable Law, as now or hereafter in effect, any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement Claim Expenses incurred by such D&O Indemnified Party in connection with enforcing any rights with respect to such Legal Action indemnification and/or advancement, in each case without the requirement of any bond or investigation. To other security, but subject to the extent permitted Marigold Surviving Corporation’s receipt of a written undertaking by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses on behalf of each such D&O Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount Claim Expenses if it is ultimately determined under applicable Law that such D&O Indemnified Party is not entitled to be indemnified indemnified. Without limiting any additional rights that any director or officer may have under any indemnification agreement set forth in Section 6.6 of the Marigold Disclosure Letter or under the DGCL or other applicable Law or articles of incorporation and bylaws of Marigold, the Company Organizational Documents D&O Indemnified Parties as a group may retain only one law firm to represent them with respect to each such Legal Action D&O Claim unless there is, under applicable standards of professional conduct, a conflict between the positions of any two or investigationmore D&O Indemnified Parties. In To the event extent authorized or permitted by applicable Law, the indemnification and advancement obligations of the Marigold Surviving Corporation pursuant to this Section 6.6(a) shall extend to acts or omissions occurring at or before the Second Merger Effective Time and any Legal Action D&O Claim relating thereto (including with respect to any acts or investigation is brought against any Indemnified Partyomissions occurring in connection with the approval of this Agreement, Parent the Mergers and the Surviving Corporation consummation of the other transactions contemplated by this Agreement, including the consideration and approval thereof and the process undertaken in connection therewith and any D&O Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall each use all commercially reasonable efforts continue as to assist in a person who has ceased to be a director or officer of Marigold or any of the vigorous defense Marigold Subsidiaries after the date hereof and shall inure to the benefit of such matter; providedPerson’s heirs, howeversuccessors, that executors, and personal and legal Representatives. As used in this Section 6.6(a): (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term “
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws, the Company Operating Partnership Agreement or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Company’s Subsidiaries, from and after the REIT Merger Effective Time, Parent, the Parent Operating Partnership, the Surviving Entity and the Surviving Partnership (the “Indemnifying Parties”), jointly and severally, shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the date of the REIT Merger Effective Time serving as a director, whether civilofficer, criminal trustee, manager, employee, agent, or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company and acting in its capacity as such or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (togetherwithin the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable Law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim and any losses, claims, damages, liabilities, costs, Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of any thereof) resulting therefrom; and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or arising permitted by applicable Law, as now or hereafter in whole or in part out of, or pertaining in whole or in part toeffect, any action Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating with respect to take action by any Claim in advance of the final disposition of such Person in such capacity taken prior Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security), but subject to (x) receipt of documentation by Parent and Surviving Entity reasonably evidencing the need for such advancement, and (y) Parent’s or the Surviving Entity’s, as applicable, receipt of an undertaking by or on behalf of such Indemnified Party, to repay such Expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not 62 entitled to be indemnified); provided, however, that none of the Indemnifying Parties shall be liable for any amounts paid in settlement effected without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) and shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single Claim except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; provided, further, that the Indemnifying Parties shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by the Indemnifying Parties of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. The indemnification and advancement obligations of the Indemnifying Parties pursuant to this Section 7.06(a) shall extend to acts or omissions occurring at or before the Partnership Merger Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or Mergers and the Contemplated Transactions, including the consideration and approval thereof and the process undertaken in connection therewith and any of the other transactions contemplated herebyClaim relating thereto), Parent and the Surviving Corporation (eachall rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director, an “Indemnifying Party”) willofficer, jointly and severallytrustee, from and after the Effective Timeemployee, indemnifyagent, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document fiduciary of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on Subsidiaries after the date hereof and shall inure to the benefit of this Agreementsuch person’s heirs, against any losses, claims, damages, liabilities, costs, reasonable executors and personal and legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance representatives. None of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation Indemnifying Parties shall settle, compromise or consent to the entry of any judgment in any Legal actual or threatened Action or investigation (and in respect of which indemnification has been or could be sought by such Indemnified Party hereunder) without hereunder unless the prior written consent of such Indemnified Party if Indemnifying Parties agree to honor the indemnification obligations hereunder and to the extent unless such settlement, compromise or judgment involves non-monetary relief from includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents thereto. Any Indemnified Party wishing to claim indemnification under this Section 7.06, upon learning of any such Claim, shall promptly notify the Company and, after the REIT Merger Effective Time, the Surviving Entity; provided that the failure to so notify shall not affect the obligations of the Company and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent the Surviving Entity except to the entry of any judgment in any Legal Action or investigation effected without its prior written consentextent, if any, such failure to promptly notify materially and adversely prejudices such party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (GMH Communities Trust)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event of any threatened or actual Legal ActionClosing, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer each of the Company or any of its Subsidiaries (togetherand PubCo agrees that it shall, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by under applicable Law Law, indemnify and required by the Company Organizational Documents (or any similar organizational document hold harmless each present and former director and officer of the (x) Company or any and each of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, Subsidiaries (in each case, solely to the extent acting in their capacity as such and to the extent such activities are related to the business of the Company being acquired under this Agreement) (the “Company Indemnified Parties”) and (y) each Parent Party (the “Parent Indemnified Parties” together with the Company Indemnified Parties, 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 any Legal Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Company, PubCo, Parent or their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and each of their respective memorandum and articles of associations, certificate of incorporation, certificate of formation, bylaws, limited liability company agreement or other organizational documents in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses Agreement to indemnify such D&O Indemnified Parties (including reimbursement for reasonable legal and other fees and the advancing of expenses as incurred in advance of to the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the fullest extent permitted by under applicable Law Law). Without limiting the foregoing, PubCo and the Company Organizational Documents, Parent shall, or and shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and their Subsidiaries to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor maintain for a period of not less than six (6) years from the Surviving Corporation shall settleClosing provisions in their respective Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Company’s, compromise Parent’s and their Subsidiaries’ former and current officers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the Organizational Documents of the Company, PubCo or consent to their respective Subsidiaries, as applicable, in each case, as of the entry date of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlementthis Agreement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlementnot amend, compromise repeal or consent to the entry of any judgment otherwise modify such provisions in any Legal Action or investigation effected without its prior written consentrespect that would adversely affect the rights of those Persons thereunder, in each case, except as required by applicable Laws.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Feutune Light Acquisition Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event of any threatened or actual Legal Actionclaim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any such Legal Action claim, action, suit, proceeding or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), when applicable, and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action claim, action, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action claim, action, suit, proceeding or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action claim, action, suit, proceeding or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, provided (if and to the extent required by the DGCL or other applicable Law or the Company Organizational DocumentsLaw) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action claim, action, suit, proceeding or investigation. In the event any Legal Action claim, action, suit, proceeding or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, provided that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action claim, action, suit, proceeding or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves the claimant seeks any non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentParty.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nuveen Investments Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the event Company Charter, the Company Bylaws or this Agreement or, if applicable, similar organizational documents or agreements of any threatened of the Subsidiaries, from and after the Effective Date through the 6th anniversary of the Effective Time, Surviving Corporation shall: (i) indemnify and hold harmless each person who is at the date hereof or actual Legal Actionduring the period from the date hereof through the Effective Date serving as a director, whether civilofficer, criminal trustee, or administrative, including any such Legal Action or investigation in which any present or former director or officer fiduciary of the Company or any of its Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (togetherwithin the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) isto the fullest extent authorized or permitted by applicable Law, as now or is threatened to behereafter in effect, made a party based in whole connection with any Claim from and against any D&O Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in part onrespect of such judgments, fines, penalties or arising amounts paid in whole settlement) resulting therefrom; and (ii) within 30 days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in part out of, or pertaining in whole or in part toeffect, any action D&O Expenses incurred in defending, serving as a witness with respect to or failure otherwise participating in any Claim in advance of the final disposition of such Claim, including advancement to take action the Indemnified Party of any D&O Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such Person indemnification and/or advancement, in each case without the requirement of any bond or other security (but subject to Parent’s or Surviving Corporation’s, as applicable, receipt of a written undertaking by or on behalf of such capacity taken prior Indemnified Party to repay such D&O Expenses if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified). The indemnification and advancement obligations of Surviving Corporation pursuant to this Section 7.05(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), Parent and the Surviving Corporation (eachall rights to indemnification and advancement conferred hereunder shall continue as to a person who has ceased to be a director, an “Indemnifying Party”) willofficer, jointly and severallytrustee, from and after the Effective Timeemployee, indemnifyagent, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document fiduciary of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on Subsidiaries after the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal hereof and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and inure to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense benefit of such matter; providedperson’s heirs, however, that executors and personal and legal representatives. As used in this Section 7.05(a): (ix) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.term “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Physicians Formula Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event Effective Time, Parent shall, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, officers and employees of the Company and its Subsidiaries (in all of their capacities) and all fiduciaries under any threatened Company Benefit Plans (collectively, the “Indemnified Parties”) against any costs, expenses (including attorney’s fees and expenses and disbursements), judgments, fines, losses, claims damages or actual Legal Actionliabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal criminal, administrative or administrativeinvestigative, including any such Legal Action arising out of or investigation in which any present pertaining to the fact that the Indemnified Party is or former director was a director, officer, employee or officer fiduciary of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or a fiduciary under any Company Benefit Plan or is threatened to beor was serving at the request of the Company or any of its Subsidiaries as a director, made a party based in whole officer or in part onemployee of any other corporation, limited liability company, partnership, joint venture, trust or arising in whole other business or in part out of, non-profit enterprise (including an employee benefit plan) whether asserted or pertaining in whole or in part claimed prior to, any action at or failure to take action by any such Person in such capacity taken prior to after the Effective Time (including with respect to any action acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties (within ten (10) days of receipt by Parent and or the Surviving Corporation (each, from an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided), howeverin all such cases to the same extent that 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 certificate of incorporation, bylaws and indemnification agreements, if any, or by any one of the Company’s Subsidiaries pursuant to such Subsidiary’s certificate of incorporation, bylaws and indemnification agreements of any Subsidiary of the Company, if any, in existence on the date hereof, (if and ii) without limitation to clause (i), to the fullest extent required permitted by applicable Law, include and cause to be maintained in effect in the DGCL Surviving Corporation’s (or other applicable Law or any successor’s) certificate of incorporation and bylaws for a period of six (6) years after the Effective Time, the 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 certificate of incorporation and bylaws of the Company Organizational Documentsand (iii) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal proceeding or threatened Action or investigation (and in which indemnification could be sought by such an Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent ), unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing, and cooperates in the defense of such proceeding or threatened Action. Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation to, obtain and fully pay for “tail” prepaid insurance policies with a claims period of at least six (ii6) years from and after the Effective Time from an insurance carrier with the same or better rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary insurance (collectively, “D&O Insurance”), for the Indemnified Parties, with terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to matters existing or occurring prior to the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby). If such “tail” prepaid insurance policies have been obtained, Parent shall, and shall cause the Surviving Corporation after the Effective Time, to maintain such policies in full force and effect, for its full term, and to continue to honor its respective obligations thereunder. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” prepaid insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no Indemnifying expense to the beneficiaries, for a period of at least six (6) years from and after the Effective Time for the Indemnified Parties, the D&O Insurance (provided that Parent (or any successor) may substitute therefor policies of at least the same terms, conditions, retentions and levels of coverage and amounts which are, in the aggregate, as favorable to the Indemnified Parties as provided in the existing policies as of the date of this Agreement) or, if such insurance is unavailable, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase the best available D&O Insurance for such six-year period from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to the Company’s existing D&O Insurance with terms, conditions, retentions and with levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement with respect to claims, actions, suits, proceedings or investigations, whether civil, criminal, administrative or investigative, arising out of or pertaining to facts or events that occurred prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby), provided, however, that in no event will Parent or the Surviving Corporation be required to expend annually in excess of 300% of the annual premium currently paid by the Company for such coverage (and to the extent the annual premium would exceed 300% of the annual premium currently paid by the Company for such coverage, the Surviving Corporation shall use all reasonable efforts to cause to be maintained the maximum amount of coverage as is available for such 300% of such annual premium). The obligations of Parent and the Surviving Corporation under this Section 6.7 shall not be terminated, amended or modified in any manner so as to adversely affect any Indemnified Party (including their successors, heirs and legal representatives) to whom this Section 6.7 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.7 applies shall be liable for any settlementthird party beneficiaries of this Section 6.7, compromise or consent to and this Section 6.7 shall be enforceable by such Indemnified Parties and their respective successors, heirs and legal representatives and shall be binding on all successors and assigns of Parent and the entry of any judgment in any Legal Action or investigation effected without its prior written consentSurviving Corporation).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wyeth)
Directors’ and Officers’ Indemnification and Insurance. (a) In For six (6) years after the event Effective Time, Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of any threatened Company or actual Legal Action, whether civil, criminal its Subsidiaries or administrative, including any such Legal Action or investigation in which any present or former director or officer an employee of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made who acts as a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or fiduciary under any of the other transactions contemplated hereby), Parent and the Surviving Corporation Company Benefit Plans (each, each an “Indemnifying Party”"INDEMNIFIED PARTY") will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any all losses, claims, damages, liabilities, costs, reasonable legal fees and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance disbursements of the final disposition of any Legal Action or investigation to each Indemnified Party), counsel and experts and judgments, fines fines, losses, claims, liabilities and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with (provided that any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it settlement is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents effected with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of Surviving Corporation, which will not be unreasonably withheld)) arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time to the fullest extent permitted under Texas law or the Surviving Corporation's certificate of incorporation and bylaws and Company's written indemnification agreements in effect on the date hereof, including provisions therein relating to the advancement of expenses incurred in the defense of any action or suit; provided, that if 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 disposition of any and all such claims; and provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Texas law, Surviving Corporation's certificate of incorporation or bylaws or such agreements, as the case may be, shall be made by independent counsel mutually acceptable to Surviving Corporation and the Indemnified Party; and provided, further, that nothing herein shall impair any rights or obligations of any Indemnified Party. If any claim or claims are brought against any Indemnified Party (whether arising before or after the Effective Time), such Indemnified Party may select counsel for the defense of such claim, which counsel shall be reasonably acceptable to Company (if and selected prior to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party Effective Time) and Parent (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent if selected after the Effective Time). Prior to the entry Effective Time, Company shall have the right, subject to the consent of any judgment in any Legal Action or investigation effected without its prior written consentParent, such consent not to be unreasonably withheld, to approve and purchase such insurance policy(ies) as may be necessary to insure the protection of the Indemnified Parties as described herein.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) In From and after the event of any threatened or actual Legal ActionEffective Time, whether civilParent shall, criminal or administrativeand shall cause the Surviving Corporation to, including any such Legal Action or investigation honor and fulfill in which any present or former director or officer all respects the obligations of the Company or any relating to indemnification of its Subsidiaries directors and officers and advancement of expenses under the Company Governing Documents in effect as of the date hereof (togethereach, an “Indemnified Party” and, collectively, the “Indemnified Parties”) is), or is threatened with respect to be, made a party based in whole or in part on, or any matter arising in whole or in part out of, or pertaining in whole relating to, or in part to, connection with any action acts or failure omissions occurring or alleged to take action by any such Person in such capacity taken have occurred prior to the Effective Time (Time, including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation Merger. Subject to the provisions of Section 145(e) of the Merger DGCL, in the event any Action is brought against any Indemnified Party for any matter alleged to occur prior to the Effective Time, (i) any counsel retained by such Indemnified Party shall be reasonably satisfactory to Parent; (ii) Parent shall pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefor are received; and (iii) Parent shall cooperate in the defense of any such matter; provided, that Parent shall not be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 7.05, upon learning of any such Action, shall promptly notify Parent (but the failure so to notify Parent shall not relieve either from any liability which it may have under this Section 7.05 except to the extent such failure prejudices Parent). Parent shall be liable for the fees and expenses hereunder with respect to only one law firm to represent the Indemnified Parties as a group with respect to each such matter unless there is, under applicable standards of professional conduct as advised by counsel, a conflict between the positions of any two or any more Indemnified Parties that would preclude or render inadvisable joint or multiple representations of such parties, in which case Parent shall be liable for the other transactions contemplated hereby), Parent fees and expenses of each applicable law firm representing an Indemnified Party in the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severallyrelevant matter. Further, from and after the Effective Time, indemnifyParent shall not, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of shall cause the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation Corporation, as applicable, not to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal proceeding or threatened Action by or investigation before any Governmental Authority, with respect to any matter arising out of, relating to, or in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time, including in connection with the execution or adoption of this Agreement (and in which indemnification could be sought by such Indemnified Party hereunder) without under Delaware law, the prior written consent of such indemnification provisions in the Company Governing Documents or his or her indemnification agreement), brought against any Indemnified Party if and to the extent Party, unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing and (ii) no Indemnifying Party Parent and the Surviving Corporation shall be liable for any settlement, compromise or consent to cooperate in the entry defense of any judgment in any Legal Action or investigation effected without its prior written consentsuch matter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Medical Nutrition Usa Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) In the event The Company shall (A) indemnify, hold harmless and advance expenses to all past and present directors and officers of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of Solstice and its Subsidiaries (togetherin all of their capacities) (x) to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Solstice pursuant to Solstice’s certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the “Indemnified Parties”date hereof with any directors and officers of Solstice and its Subsidiaries and (y) iswithout limitation to clause (x), to the fullest extent permitted by Applicable Law, in each case for acts or is threatened to be, made a party based omissions in whole their capacities as directors or in part on, officers occurring at or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action for acts or failure to take action omissions occurring in connection with the approval of this Agreement and the consummation of the Merger Transactions), (B) include and cause to be maintained in effect in Solstice Surviving Corporation’s (or any successor’s) certificate of incorporation and by-laws after the Effective Time provisions regarding elimination of liability of directors, indemnification of officers and directors, and advancement of expenses which are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in Solstice’s certificate of incorporation and by-laws, (C) periodically advance to any such indemnitee its legal and other transactions contemplated herebyexpenses (including the cost of any investigation and preparation incurred in connection therewith), Parent subject to clause (c) of this Section 6.14, and subject to the providing by such indemnitee of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such indemnitee is not entitled thereto and (D) 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 Solstice (provided that Solstice Surviving Corporation (eachor 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 the Company or Solstice Surviving Corporation be required pursuant to this Section 6.14(a) to expend in any one year an amount in excess of 300% of the last annual premium paid by Solstice for such insurance prior to the date hereof, the amount of such annual premium being set forth in Section 6.14(a) of the Solstice Disclosure Letter; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Solstice Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. Solstice may extend coverage, effective as of the Effective Time, under Solstice’s D&O Insurance by obtaining a six-year “Indemnifying Party”) willtail” policy prior to the Closing on terms and conditions no less advantageous to the covered persons than Solstice’s existing D&O Insurance, jointly and severallysuch “tail” policy shall satisfy the provisions of this Section 6.14(a). If such “tail” policy has been obtained by Solstice prior to the Closing, from Solstice Surviving Corporation shall maintain such policies in full force and effect and continue to honor Solstice’s obligations thereunder. From and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document will guarantee the obligations of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Solstice Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consentthis Section 6.14(a).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Without limiting any additional rights that any employee may have under any agreement with the Company Group or its Affiliates or employee benefit plan, from the Closing through the sixth (6th) anniversary of the date on which the Closing occurs, the Acquiror shall, and shall cause the Company and each member of the Company Group, to the maximum extent permitted by applicable Law, to indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, manager or employee of New DN or the Company Group (the “D&O Indemnified Parties”), against all Losses, incurred in connection with any Action arising out of or pertaining to (i) the fact that the D&O Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of New DN or the Company Group or (ii) matters existing or occurring at or prior to the Closing (including this Agreement, the other Transaction Agreements and the transactions and actions contemplated hereby and thereby), whether asserted or claimed prior to, at or after the Closing, to the fullest extent permitted under applicable Law. In the event of any threatened or actual Legal such Action, whether civil, criminal or administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”x) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such each D&O Indemnified Party or any Contract between an Indemnified Party and the Company or one will be entitled to advancement of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition defense of any Legal Action from the Acquiror or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause Group within ten (10) Business Days of receipt by the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are incurred upon receipt Acquiror from such the D&O Indemnified Party of a request therefor; provided, howeverthat any Person to whom expenses are advanced provides an undertaking, (if and only to the extent required by the DGCL or other applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes Company’s organizational documents, to repay such amount advances if it is ultimately determined that such Indemnified Party Person is not entitled to be indemnified under indemnification, (y) neither the DGCL or other applicable Law or Acquiror nor its Affiliates (including the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (iGroup) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such D&O Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent ), unless such settlement, compromise or judgment involves non-monetary relief from consent includes an unconditional release of such D&O Indemnified Party from all Liability arising out of such Action or such D&O Indemnified Party otherwise consents, and (iiz) no Indemnifying Party the Acquiror and its Affiliates (including the Company Group) shall be liable for any settlement, compromise or consent to cooperate in the entry defense of any judgment in any Legal Action or investigation effected without its prior written consentsuch matter.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Tronc, Inc.)
