Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law. (b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). (c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable). (d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5. (e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5. (f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 7 contracts
Samples: Stock Purchase Agreement (Ashner Michael L), Stock Purchase Agreement (Shelbourne Properties I Inc), Stock Purchase Agreement (Ashner Michael L)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Articles of (i) the sixth anniversary Incorporation and Bylaws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VII of the By-laws Bylaws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw. Any determinations made pursuant to Section 3 of Article VII of the Bylaws of the Company with respect to the appropriateness of indemnification shall be made in good faith.
(b) The Company shall, to the fullest extent permitted under applicable by Delaware Law, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the extent permitted by Delaware Law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.be
Appears in 5 contracts
Samples: Merger Agreement (Healey William L), Merger Agreement (Smartflex Systems Inc), Merger Agreement (Ssi Acquisition Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on The Articles of Incorporation of IVAX, the earlier Certificate of (i) Incorporation of Bergen and the sixth anniversary Bylaws of IVAX and Bergen, as the case may be, shall contain the provisions that are set forth, as of the Effective Time date of this Agreement, in the Articles of Incorporation of IVAX and (ii) the Liquidation DateCertificate of Incorporation of Bergen, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Companyrespectively, and such in the Bylaws of IVAX and Bergen, as the case may be, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the CompanyIVAX or Bergen, unless such modification shall be required by Lawrespectively.
(b) The Company shallFor a period of six years after the Effective Time, BBI shall cause to be obtained and maintained in effect a noncancellable runoff policy for the current directors' and officers' liability insurance policies maintained by IVAX and Bergen with respect to claims arising from facts or events that occurred prior to the fullest extent permitted Effective Time.
(c) This Section 6.07 is intended to be for the benefit of, and shall be enforceable by, the indemnified parties, their heirs and personal representatives and shall be binding on IVAX, Bergen and BBI and their respective successors and assigns.
(d) Notwithstanding anything to the contrary contained herein, BBI and each of the Surviving Corporations shall assume and perform all obligations of each of IVAX and Bergen arising under applicable Lawany indemnification agreement entered into prior to the date hereof between each of IVAX and Bergen and certain officers and directors of IVAX and Bergen, respectively.
(e) From and after the Effective Time, BBI agrees that it shall indemnify and hold harmless each present and former directordirector and officer of IVAX or Bergen, officer, fiduciary and agent determined as of the Company and each of its subsidiaries Effective Time (collectively, the "Indemnified Parties") ), against all any costs and or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and settlement amounts paid "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that IVAX or Bergen would have been permitted under Florida or New Jersey law, as the case may be, and their charter documents (each as in effect on the date hereof) to indemnify such Indemnified Parties (and BBI shall also advance expenses as incurred to the fullest extent permitted under applicable Law; provided, however, that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined pursuant to a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification).
(f) To the extent paragraph (e) shall not serve to indemnify and hold harmless an Indemnified Party, for a period of six years after the date hereof, BBI shall, subject to the terms set forth herein, indemnify and hold harmless, to the fullest extent permitted under applicable Law (and BBI shall also advance expenses as incurred to the fullest extent permitted under applicable Law; provided, however, that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification), each Indemnified Party against any Costs incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the transactions contemplated by this Agreement; provided further, however, that BBI shall not be required to indemnify any Indemnified Party pursuant hereto if it shall be determined that the Indemnified Party acted in bad faith and not in a manner such Indemnified Party believed to be in or not opposed to the best interests of IVAX or Bergen, as the case may be.
(g) Any Indemnified Party wishing to claim indemnification under paragraph (e) or (f) of this Section 6.07, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify BBI thereof, but the failure to so notify shall not relieve BBI of any liability it may have to such Indemnified Party if such failure does not materially prejudice BBI. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) BBI shall have the Company right to assume the defense thereof and BBI shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if BBI elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between BBI and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and BBI shall pay the all reasonable fees and expenses of such counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Parties promptly after as statements therefor are received and received; provided, however, that BBI shall be obligated pursuant to this paragraph (f) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Company Indemnified Parties shall cooperate in the defense of any such matter; provided, however, that the Company matter and (iii) BBI shall not be liable for any settlement effected without its prior written consent (which consent consent; and provided further, however, that BBI shall not be unreasonably withheld)have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. Notwithstanding the foregoing, if such indemnity is not available with respect to any Indemnified Party, then BBI and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(ch) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company If BBI or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any personindividual, corporation or other entity, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company BBI shall assume all of the obligations set forth in this Section 56.07.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 5 contracts
Samples: Merger Agreement (Frost Phillip Md Et Al), Merger Agreement (Ivax Corp /De), Merger Agreement (Bergen Brunswig Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time Time, IHK shall, and (ii) shall cause the Liquidation DateSurviving Corporation to, indemnify and hold harmless, each present and former director, officer, employee and fiduciary the By-laws Company and each Company Subsidiary and each Person who served at the request of the Company shall contain provisions no less favorable with respect to indemnification or any Company Subsidiary as a director, officer, trustee, partner, fiduciary or employee of another corporation, partnership, joint venture, trust pension or other employee benefit plan or enterprise (collectively, the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall"Indemnified Parties"), to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee or fiduciary, whether occurring before or after the Effective Time, including, without limitation, the transactions contemplated by this Agreement (and shall also advance, or cause to be advanced, expenses as incurred to the fullest extent permitted under the DGCL, provided that the Person to whom expenses are advanced provides the undertaking to repay such advances contemplated by Section 145(e) of the DGCL). IHK and Merger Sub agree that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's By-Laws, as in effect as of the date hereof. In , with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time.
(b) Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, investigation (a "Claim") is brought against any Indemnified Party (whether arising before or after the Effective Time) after the Effective Time (i) the Company Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to IHK and the Surviving Corporation, (ii) IHK and the Surviving Corporation shall pay the all reasonable fees and expenses of such counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Parties promptly after as statements therefor are received and (iiiii) IHK and the Company shall cooperate Surviving Corporation will use commercially reasonable efforts to assist in the vigorous defense of any such matter; provided, however, provided that neither IHK nor the Company Surviving Corporation shall not be liable for any settlement of any Claim effected without its written consent (consent, which consent consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.07, upon learning of any such Claim, shall notify IHK (but the failure so to notify IHK shall not relieve IHK from any liability that IHK may have under this Section 6.07 except to the extent such failure materially prejudices IHK), and shall deliver to IHK the undertaking contemplated by Section 145(e) of the DGCL. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) The Company shall maintain until the earlier For a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation DateTime, if available, IHK shall cause to be maintained in effect the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company IHK may substitute therefor policies of at least the same coverage containing terms and conditions which are not no less favorableadvantageous) with respect to claims arising from facts or events that occurred prior to the Effective Time; provided, however, that in no event shall IHK be required to expend pursuant to this Section 6.07(c) more than an amount per year equal to 200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be approximately $260,000 per year in the aggregate).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 5 contracts
Samples: Merger Agreement (Imperial Holly Corp), Merger Agreement (Imperial Holly Corp), Merger Agreement (Imperial Holly Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier later of (i) the sixth anniversary of six (6) years from the Effective Time and (ii) sixty (60) days after the Liquidation Datedate of the final, non‑appealable resolution of any Claim that is commenced prior to the sixth (6th) year anniversary of the Effective Time, to the fullest extent authorized or permitted by applicable Law, the By-laws Surviving Entity shall provide exculpation, indemnification and advancement of expenses for each Indemnitee, which is at least as favorable in scope and amount to such Indemnitee as the exculpation, indemnification and advancement of expenses provided to such Indemnitee by the Company and the Company Subsidiaries immediately prior to the Effective Time in the Company Charter and the Company Bylaws or each of the Company shall contain provisions no less favorable with respect to Subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) as the case may be, as in effect on the date of this Agreement; provided that such exculpation, indemnification and advancement of expenses covers actions or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who omissions at or prior to the time of the consummation of the Offer were directorsEffective Time, officers, fiduciaries or agents of the Company, unless such modification shall be required including all transactions contemplated by Lawthis Agreement.
(b) The Without limiting or being limited by the provisions of Section 6.9(a), and without limiting any other or additional rights that any Indemnitee may have under any indemnification agreement, the Company shallCharter, the Company Bylaws, the Parent Charter or the Parent Bylaws, or, if applicable, similar organizational documents or agreements of any Company Subsidiary or Parent Subsidiary, from and after the Effective Time, to the fullest extent authorized or permitted under by applicable Law, indemnify Parent and the Surviving Entity shall (and Parent shall cause the Surviving Entity to): (i) indemnify, defend and hold harmless each present Indemnitee against and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all from any costs and or expenses (including attorneys' ’ fees), judgments, fines, penalties, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claimClaim, actionto the extent such Claim arises out of, suit, proceeding relates to or investigation pertains to (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to A) any action or omission occurring before or after the date hereof. In the event alleged action or omission in such Indemnitee’s capacity as a director, officer, partner, member, trustee, employee or agent of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay or any of the reasonable fees and expenses Company Subsidiaries, or (B) this Agreement or any of counsel selected the transactions contemplated by this Agreement, including the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received Merger; and (ii) pay in advance of the Company shall cooperate in the defense final disposition of any such matter; providedClaim, howeverand advance to each Indemnitee as now or hereafter in effect, any Claims Expenses of any Indemnitee without the requirement of any bond or other security, but, subject to Parent’s and the Surviving Entity’s receipt of an undertaking by or on behalf of such Indemnitee to repay such advanced amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified, to the Company extent such undertaking is required by applicable Law. Notwithstanding anything to the contrary set forth in this Agreement, Parent or the Surviving Entity shall not be liable for any settlement settlement, compromise or consent to entry of judgment effected without its their prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned).
(c) The Company shall maintain until the earlier of . As used in this Section 6.9, (i) the sixth anniversary term “Claim” means any threatened, asserted, pending or completed Action, whether instituted by any party hereto, any Governmental Authority or any other Person, whether criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of the Effective Time and or pertaining to (iiA) the Liquidation Datematters that relate to such Indemnitee’s duties or service as a manager, if availabledirector, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies officer, trustee, employee, agent or fiduciary of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume Subsidiaries or, to the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause extent such person is or was serving at the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended request or for the benefit of Company or any of the Indemnified Parties and their respective heirsCompany Subsidiaries, executors and personal representatives and shall be enforceable any other entity or any Benefit Plan maintained by them as third party beneficiaries hereof.any of the foregoing at or prior to
Appears in 4 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT, Inc.), Merger Agreement (Signature Office Reit Inc), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary The charter and bylaws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain the provisions no less favorable with respect to indemnification or the regarding liability of directors than and indemnification of directors and officers that are set forth in Article VIIforth, Section 7.2 as of the By-laws date of this Agreement, in the charter and the bylaws, respectively, of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The For a period of six years after the Effective Time, the Surviving Corporation shall use best efforts to cause to be maintained in effect policies of directors' and officers' liability insurance with coverage in amount and scope at least as favorable as the Company's existing policies with respect to claims arising from facts or events that occurred prior to the Effective Time.
(c) This Section 6.06 is intended to be for the benefit of, and shall be enforceable by, the indemnified parties, their heirs and personal representatives and shall be binding on the Surviving Corporation and its respective successors and assigns.
(d) From and after the Effective Time, the Surviving Corporation agrees that it shall indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), from and against any costs, judgments, fines, losses, obligations, claims, damages, liabilities, or expenses (including interest, penalties, reasonable out-of-pocket expenses and reasonable attorneys' fees incurred in the investigation or defense of any of the same or in asserting any of their rights hereunder) (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, resulting from, or pertaining to matters existing or occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company shall, would have been permitted or required under Maryland laws and under the Company's charter documents (as in effect on the date hereof) to indemnify such Indemnified Parties (and the Surviving Corporation shall advance expenses as incurred to the fullest extent permitted under applicable Law; provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification); provided that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Maryland law and the Company's charter documents shall be made by independent counsel selected by the Surviving Corporation.
(e) Any Indemnified Party wishing to claim indemnification under paragraph (d) of this Section 6.06, indemnify and hold harmless each present and former directorupon learning of any such claim, officeraction, fiduciary and agent suit, proceeding or investigation, shall promptly notify Parent thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party, except to the Company and each extent that such failure materially prejudices the Surviving Corporation. In the event of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any such claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall have the right to assume the defense thereof, with counsel selected by Parent and reasonably acceptable to the Indemnified Party, and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Corporation shall pay the all reasonable fees and expenses of such counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Parties promptly after as statements therefor are received and received; provided, however, that the Surviving Corporation shall be obligated pursuant to this paragraph (f) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Company shall Indemnified Parties will cooperate in the defense of any such matter; provided, however, that matter and (iii) the Company Surviving Corporation shall not be liable for any settlement effected without its the prior written consent of Parent; and provided further that the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. The Surviving Corporation shall not, in the defense of any claim or litigation, except with the consent of the Indemnified Party (which consent shall not be unreasonably withheldwithheld or delayed), consent to entry of judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation.
(cf) The Company shall maintain until If the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company Surviving Corporation or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or substantially all of its properties and assets or outstanding voting securities to any personindividual, thencorporation or other entity, then and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Surviving Corporation shall expressly assume all of the obligations set forth in this Section 56.06.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 4 contracts
Samples: Merger Agreement (Crown Central Petroleum Corp /Md/), Merger Agreement (Rosemore Inc), Merger Agreement (Crown Central Petroleum Corp /Md/)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the CompanyParent shall, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely cause the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shallSurviving Entity to, to the fullest extent permitted under applicable Lawby Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the MGCL or the LLC Act adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify indemnify, defend and hold harmless each (and advance expenses, provided the Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such Person is not entitled to indemnification) the present and former director, officer, fiduciary directors and agent officers of the Company and the Company Subsidiaries, and any fiduciaries under any Company Benefit Plan (each of its subsidiaries (collectivelyan “Indemnified Party”), the "Indemnified Parties") against any and all costs and or expenses (including reasonable attorneys' fees’ fees and expenses), judgments, fines, losses, claims, damages, penalties, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding actual or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of (iin whole or in part), relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement or the transactions contemplated hereby or arising out of or pertaining to the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time.
(b) From and after the Company shall pay Effective Time, Parent, the reasonable fees Surviving Entity and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company Parties shall cooperate in the defense of any actual or threatened claim, action, suit, proceeding or investigation relating to any circumstances, developments or matters in existence at or prior to the Effective Time, or acts or omissions occurring at or prior to the Effective Time for which indemnification could be sought by an Indemnified Party hereunder and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such matter; providedconferences, howeverdiscovery proceedings, that hearings, trials or appeals, as may be reasonably requested in connection therewith. From and after the Company Effective Time, Parent and the Surviving Entity shall not be liable settle, compromise or consent to the entry of any judgment with respect to any actual or threatened claim, action, suit, proceeding or investigation described in the preceding sentence unless: (i) such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such Claim; (ii)(A) such settlement, compromise or consent does not provide for any settlement effected without acknowledgement of fault or wrongdoing by any Indemnified Party and (B) the Surviving Entity reaffirms in writing its written obligations to each Indemnified Party under this Section 6.8; or (iii) each Indemnified Party otherwise consents in writing to such settlement, compromise or consent (which such consent shall not to be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary Constituent Documents of the Surviving Entity shall include provisions for indemnification, advancement of expenses and exculpation of the Indemnified Parties on the same basis as set forth in the Constituent Documents of the Company in effect on the date of this Agreement. Following the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' Surviving Entity shall, and officers' liability insurance policies maintained Parent shall cause the Surviving Entity to, maintain in effect the provisions in its Constituent Documents providing for indemnification, advancement of expenses and exculpation of Indemnified Parties, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable Law, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by applicable Law that would enlarge the Company (provided that scope of the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable)Indemnified Parties’ indemnification rights thereunder.
(d) In If Parent or the event the Company Surviving Entity or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation Surviving Entity or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision shall provisions to be made prior to the consummation of any transaction of the type described in clause (i) or clause (ii) of this sentence so that the successors and assigns of Parent or the Company Surviving Entity, as the case may be, shall assume all of the obligations set forth in this Section 56.8.
(e) Purchaser From and after the Effective Time, Parent and the Surviving Entity shall use all reasonable efforts to cause comply with, and shall not, directly or indirectly, amend, modify, limit or terminate the advancement of expenses, exculpation and indemnification provisions of the agreements listed on Section 6.8(e) of the Company to perform all Disclosure Schedule between the Company and any of its obligations under this Section 5the Indemnified Parties, or any such provisions contained in the Surviving Entity’s Constituent Documents.
(f) This Section 5 6.8 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Entity. Each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Entity, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification, then Parent or the Surviving Entity shall pay such Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Entity. The rights of the Indemnified Parties and their respective heirs, executors and personal representatives and under this Section 6.8 shall be enforceable by them in addition to any rights such Indemnified Parties may have under the Constituent Documents of the Company, the Constituent Documents of any of the Company Subsidiaries or the Surviving Entity or under any applicable Contracts, insurance policies or Laws.
(g) Following the Effective Time, the Surviving Entity shall, and Parent shall cause the Surviving Entity to, maintain with reputable and financially sound carriers the extension of the Company’s existing D&O Insurance, for a claims reporting or discovery period (whichever is greater) of six (6) years from and after the Effective Time with respect to any claim arising from facts or events that existed or occurred at or prior to the Effective Time with terms, conditions, retentions, coverage limits and limits of liability that are at least as third party beneficiaries hereoffavorable as the coverage provided under the Company’s existing D&O Insurance.
Appears in 4 contracts
Samples: Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Equity Commonwealth)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the each respective Effective Time and (ii) the each respective Liquidation Date, the By-laws of the each Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the each Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the each Offer were directors, officers, fiduciaries or agents of the any Company, unless such modification shall be required by Law.
(b) The Each Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the such Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the any or each respective Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the any or each Company, promptly after statements therefor are received and (ii) the any or each Company shall cooperate in the defense of any such matter; provided, however, that the any or each Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Each Company shall maintain until the earlier of (i) the sixth anniversary of the each respective Effective Time and (ii) the each respective Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the each Company (provided that the such Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the any Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the such Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the each Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 4 contracts
Samples: Settlement Agreement (Shelbourne Properties I Inc), Settlement Agreement (Ashner Michael L), Settlement Agreement (Ashner Michael L)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending Parent and Merger Subsidiary agree that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company ( an "Indemnified Party") as provided in the Company Charter Documents, in each case as in effect on the earlier date of (i) this Agreement, or pursuant to any other Contracts in effect on the sixth anniversary of date hereof and disclosed in Section 5.08, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and (ii) shall survive the Liquidation DateMerger and shall remain in full force and effect in accordance with their terms, and, in the By-laws event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of the Company shall contain provisions no less favorable with respect to indemnification such proceeding or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Lawclaim.
(b) The Company shallFor three years after the Effective Time, to the fullest extent permitted under applicable Law, indemnify Parent and the Surviving Corporation (the "Indemnifying Parties") shall indemnify, defend and hold harmless each present Indemnified Party including parents, consultants, and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") employees against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities liabilities, fees, expenses, judgments and settlement amounts paid fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereoftransactions contemplated by this Agreement), whether civil, criminal, administrative and shall reimburse each Indemnified Party for any legal or investigative, arising out of other expenses reasonably incurred by such Indemnified Party in connection with investigating or pertaining to any action or omission occurring before or after the date hereof. In the event of defending any such claimlosses, actionclaims, suitdamages, proceeding or investigationliabilities, (i) fees, expenses, judgments and fines as such expenses are incurred, subject to the Company shall pay the reasonable Surviving Corporation's receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of counsel selected by the a court of competent jurisdiction that such Indemnified Parties, which counsel shall Party is not entitled to be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matterindemnified under applicable Law; provided, however, that the Company shall Surviving Corporation will not be liable for any settlement effected without its the Surviving Corporation's prior written consent (which consent shall not be unreasonably withheld)consent.
(c) The Company Surviving Corporation shall, and Parent shall maintain until cause the earlier of Surviving Corporation to, (i) the sixth anniversary maintain in effect for a period of three (“3”) years after the Effective Time and (ii) the Liquidation DateTime, if available, the current policies of directors' and officers' liability insurance policies maintained by the Company immediately prior to the Effective Time (provided that the Company Surviving Corporation may substitute therefor policies policies, of at least the same coverage and amounts and containing terms and conditions which that are not less favorableadvantageous to the directors and officers of the Company and its Subsidiaries when compared to the insurance maintained by the Company as of the date hereof), or (ii) obtain as of the Effective Time "tail" insurance policies with a claims period of three (“3”) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its Subsidiaries, in each case with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event will the Surviving Corporation be required to expend an annual premium for such coverage in excess of Ten percent (“10%”) of the last annual premium paid by the Company for such insurance prior to the date of this Agreement, which amount is set forth on Section 5.08(c) of the Company Disclosure Letter (the "Maximum Premium"). If such insurance coverage cannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of directors' and officers' insurance (or "tail" coverage) obtainable for an annual premium equal to the Maximum Premium.
(d) The obligations of Parent and the Surviving Corporation under this Section 5.08 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.08 applies without the consent of such affected Indemnified Party.
(e) In the event Parent, the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.
(e) Purchaser 5.08. The agreements and covenants contained herein shall use all reasonable efforts not be deemed to cause be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company to perform all of or its obligations under officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 55.08 is not prior to, or in substitution for, any such claims under any such policies.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 4 contracts
Samples: Merger Agreement (Nitro Petroleum Inc.), Merger Agreement (Core Resource Management, Inc.), Merger Agreement (Nitro Petroleum Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Parent and Merger Sub agree that, from and after the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation DateAcceptance Time, the By-laws Surviving Corporation’s certificate of the Company incorporation and bylaws shall contain provisions no less favorable with respect to exculpation from liabilities and indemnification of the present or former directors, officers, employees and agents of the liability of directors Company than are set forth currently provided in Article VII, Section 7.2 of the By-laws of the Company’s Certificate of incorporation and bylaws, and such which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect adversely the rights thereunder of any such individuals who at or prior to until the time expiration of the consummation statutes of the Offer were directors, officers, fiduciaries limitations applicable to such matters or agents of the Company, unless such amendment, modification shall be or repeal is required by applicable Law.
(b) The Without limiting any additional rights that any Person may have under any agreement, from and after the Acceptance Date, the Company shall (and from and after the Effective Time, the Surviving Corporation shall), to and Parent shall cause the fullest extent permitted under applicable LawCompany and the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former director, officer, fiduciary officer and agent director of the Company (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and each of its subsidiaries (collectively, the "“Indemnified Parties") ”), against all costs and expenses (including attorneys' fees)claims, losses, liabilities, damages, judgments, inquiries, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)proceeding, whether civil, criminal, administrative or investigative, arising out of, pertaining to or in connection with the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company, or of another entity if such service was at the request of or pertaining to any action for the benefit of the Company, whether asserted or omission occurring before claimed prior to, at or after the Effective Time, to the fullest extent the Company or the Surviving Corporation, as applicable, is permitted to do so under applicable Law and the certificate of incorporation or bylaws of the Company as at the date hereof, including with respect to all actions taken and omitted to be taken in connection with the approval, recommendation, negotiation, execution and consummation of this Agreement, the Tender and Support Agreement, the Merger, the Offer and all of the transactions contemplated hereby and thereby. In the event of any such claimproceeding, action, suit, each Indemnified Party will be entitled to advancement of expenses incurred in the defense of the proceeding or investigation, (i) from the Company or the Surviving Corporation, as applicable, to the maximum extent permitted by applicable Law (provided that any Person to whom expenses are advanced shall pay have provided an undertaking to repay such advances if it is finally determined that such Person is not entitled to indemnification), and Parent shall cause the reasonable fees Company and expenses the Surviving Corporation to provide such advancement of counsel selected by expenses. The Company or the Surviving Corporation, as applicable, shall reasonably cooperate with the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate Parties in the defense of any such matter; providedmatter and any determination made or required to be made with respect to whether an Indemnified Party’s conduct complies with standards under applicable Law, however, that the certificate of incorporation or bylaws shall be made by independent legal counsel selected by the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)or the Surviving Corporation, as applicable, and reasonably acceptable to the Indemnified Party.
(c) The Company shall maintain until purchase by the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Acceptance Date, if availableand Parent shall cause the Surviving Corporation to maintain, tail policies to the current directors' ’ and officers' ’ liability insurance policies maintained on the date of this Agreement by the Company, which tail policies (i) shall not have an aggregate annual premium in excess of 300% of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the existing policies (provided that which amount is set forth in Section 6.9 of the Company may substitute therefor policies of Disclosure Schedule), (ii) shall be effective for a period from at least the same Acceptance Date through and including the date six years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Acceptance Date, and (iii) shall contain coverage containing terms that is at least as protective to such directors and conditions which are officers as the coverage provided by such existing policies; provided, however, that, if equivalent coverage cannot less favorable)be obtained or can be obtained only by paying an aggregate annual premium in excess of 300% of such amount, the Company shall only be required to obtain (and the Surviving Corporation shall only be required to maintain) as much coverage as can be obtained by paying an aggregate annual premium equal to 300% of such amount.
(d) In This Section 6.9 shall survive the event consummation of the Company Merger and is intended to benefit, and shall be enforceable by, any Person or entity referred to in clause (a) of this Section 6.9 (whether or not parties to this Agreement). If Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of resulting from such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume the applicable obligations set forth in this Section 56.9.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 3 contracts
Samples: Merger Agreement (Natrol Inc), Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on six years after the earlier First Effective Time, the Surviving LLC shall, and Parent shall cause the Surviving LLC to, 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 sixth anniversary 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 (the “Indemnified Liabilities”) and (ii) all Indemnified Liabilities to the Liquidation Dateextent they are based on or arise out of or pertain to the transactions contemplated hereby, whether asserted or claimed prior to, at or after the First Effective Time. In the event of any such Indemnified Liability under part (i) or (ii) of this paragraph (whether or not asserted before the First Effective Time), the By-laws 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 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 date hereof) in effect on the date of this Agreement (provided that the person to whom expenses are advanced provides an undertaking to repay such advance if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such person is not legally entitled to indemnification under applicable Law).
(b) The Company shall be permitted to, prior to the First Effective Time, and if the Company fails to do so, Parent shall, and Parent shall cause the Surviving LLC to, obtain and fully pay the premium for an insurance and indemnification policy that provides coverage for a period of six (6) years from and after the First Effective Time for events occurring prior to the First Effective Time (the “D&O Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate to the intended beneficiaries thereof than the Company’s existing directors’ and officers’ liability insurance policy; provided, that in no event shall the premium of the D&O Insurance exceed the amount set forth in Section 6.6(b) of the Company Disclosure Letter. If the Company and the Surviving LLC for any reason fail to obtain such “tail” insurance policy as of the First Effective Time, the Surviving LLC shall, and Parent shall cause the Surviving LLC to, continue to maintain in effect for a period of at least six (6) years from and after the First Effective Time (and for so long thereafter as any claims brought before the end of such six (6) year period thereunder are being adjudicated) the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or Parent shall, and Parent shall cause the Surviving LLC to, purchase comparable D&O Insurance for such six (6) year period (and for so long thereafter as any claims brought before the end of such six (6) year period thereunder are being adjudicated) with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement.
(c) For not less than six (6) years from and after the First Effective Time, the certificate of formation and the limited liability company agreement of the Surviving LLC shall contain provisions no less favorable with respect to exculpation, indemnification or the liability and advancement of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who expenses for periods at or prior to the time First Effective Time than are currently set forth in the Company Charter or the Company Bylaws. The contractual indemnification rights, if any, in existence on the date of this Agreement with any of the consummation of the Offer were directors, officers, fiduciaries officers or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent employees of the Company or any Company Subsidiary that have been made available to Parent prior to the date hereof and each as set forth on Section 6.6(c) of its subsidiaries (collectivelythe Company Disclosure Letter shall be assumed by the Surviving LLC, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with without any claim, further action, suit, proceeding or investigation (whether arising before or after and shall continue in full force and effect in accordance with their terms following the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the First Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable)Time.
(d) In the event that Parent or the Company Surviving LLC or any of its their successors or assigns shall (i) consolidates consolidate with or merges merge or amalgamate into any other person Person and shall not be the continuing or surviving corporation company or entity of such consolidation consolidation, merger or merger amalgamation or (ii) transfers transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of Parent, the Company shall assume Surviving LLC or such transferee of all or substantially all of its or their properties and assets, as the case may be, assumes the obligations set forth in this Section 56.6.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all The Indemnified Parties are third-party beneficiaries of its obligations under this Section 5.
(f) This 6.6. The provisions of this Section 5 is 6.6 shall survive the Mergers and are intended to be for the benefit of, and enforceable by, each Indemnified Party and his or her successors, heirs or representatives. The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other applicable rights such Indemnified Party may have under the respective organizational documents of the Indemnified Parties and their respective heirsCompany or any of its Subsidiaries or the Surviving LLC, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofany other indemnification arrangement, applicable Law or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Costar Group, Inc.), Merger Agreement (Matterport, Inc./De), Merger Agreement (Matterport, Inc./De)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on six years from and after the earlier of (i) the sixth anniversary date of the Effective Time and (ii) the Liquidation DateClosing, the By-laws indemnification provisions then set forth in the articles of association of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Closing, were directors, officers, fiduciaries officers or agents Key Employees of the CompanyCompany or any of its Subsidiaries, unless such modification shall be required by Lawapplicable Laws.
(b) The From and after the Closing, Buyer and the Company shallshall jointly and severally, to the fullest extent permitted under applicable LawLaws, indemnify indemnify, defend and hold harmless harmless, each present and former director, officer, fiduciary and agent officer or Key Employee of the Company and each or any of its subsidiaries Subsidiaries (collectively, the "“Indemnified Parties"”) against all any costs and or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, (i) arising out of or pertaining to the Offer or this Agreement or (ii) otherwise with respect to any action acts or omission omissions or any alleged acts or omissions occurring before prior to, on or after the Closing, in each case to the same extent and subject to any limitations as provided in the Company’s articles of association or any agreement set forth in Schedule 7.04(b) as in effect on the date hereof, in each case for a period of six years after the date hereof. In From and after the Closing, in the event of any such claim, action, suit, proceeding or investigationinvestigation brought against any Indemnified Party (other than in the case of sub-clause (B) below by Buyer, Parent or the Company), to the same extent and subject to any limitations provided in any such articles of association or agreement set forth in Schedule 7.04(b) (iA) Buyer or the Company Company, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received Parties and (iiB) Buyer and the Company shall cooperate in the defense of any such mattermatter as reasonably requested by such Indemnified Party, and without Buyer, Parent and/or the Company, as the case may be, being required to disclose any information or materials protected by attorney-client privilege, attorney work product doctrine or other immunities from disclosure; provided, however, that neither Buyer nor the Company shall not be liable for any settlement effected without its the written consent of Buyer or the Company (which consent shall not be unreasonably withheldconditioned, withheld or delayed); provided further, that in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The From and after the Closing, Buyer shall cause the Company shall to maintain until in effect for six years from the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if availableClosing, the current directors' ’ and officers' ’ liability insurance policies maintained by the Company (with respect to matters occurring prior to the Closing; provided that the Company may substitute therefor a policy or policies of at least the same coverage containing terms and conditions which that in the aggregate are not materially less favorable); provided further, that in no event shall the Company be required to expend pursuant to this Section 7.04(c) more than an amount equal to 250% of current annual premiums paid by the Company for such insurance.
(d) From and after the Closing, Buyer and the Company jointly and severally agree to pay all expenses, including reasonable attorneys’ fees, that may be incurred by the Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 7.04.
(e) The provisions of this Section 7.04, (i) are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her representative or agent and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(f) In the event Buyer or the Company or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer or the Company Company, as the case may be, shall assume the obligations set forth in this Section 57.04.
(eg) Purchaser shall use all reasonable efforts to cause the Company to perform all of its The rights and obligations under this Section 5.
(f) This 7.04 shall survive consummation of the Offer and the Closing and shall not be terminated or amended in a manner that is adverse to any Indemnified Party without the written consent of such Indemnified Party; provided that if this Agreement is terminated prior to the Closing in accordance with Section 5 8.01, this Section 7.04 shall not survive and shall be of no further effect. It is intended for the benefit of expressly agreed that the Indemnified Parties and their respective heirs, executors and personal representatives to whom this Section 7.04 applies shall be third party beneficiaries of this Section 7.04 and shall be enforceable by them as third party beneficiaries hereofentitled to enforce the covenants and agreements contained herein.
Appears in 3 contracts
Samples: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Parent and Purchaser shall cause the earlier Surviving Corporation’s certificate of (i) the sixth anniversary of the Effective Time incorporation and (ii) the Liquidation Date, the By-laws of the Company shall bylaws to contain provisions no less favorable with respect to indemnification or indemnification, advancement of expenses, and exculpation from liabilities of present and former directors, officers, and employees of the liability of directors Company than are set forth currently provided in Article VIIthe Certificate of Incorporation and Bylaws, Section 7.2 of the By-laws of the Company, and such which provisions shall may not be amended, repealed repealed, or otherwise modified in any manner that would adversely affect adversely the rights thereunder of any such individuals who at or prior to until the time later of (i) the expiration of the consummation statute of limitations applicable to such matters and (ii) six (6) years from the Offer were directorsEffective Time, officersand in the event that any Proceeding is pending or asserted or any claim made during such period, fiduciaries until the disposition of any such Proceeding or agents of the Companyclaim, unless such modification shall be amendment, modification, or repeal is required by applicable Law, in which case Parent shall, and shall cause the Surviving Corporation to, make such changes to the certificate of incorporation and the bylaws as to have the least adverse effect on the rights of the individuals referenced in this Section 6.5.
(b) The Without limiting any additional rights that any Person may have under any agreement or Company Plan, from and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and (as of the Effective Time) or former director, officer, fiduciary and agent director or officer of the Company and each of its subsidiaries (collectivelyeach, the "together with such Person’s heirs, executors, or administrators, an “Indemnified Parties") Party”), against all costs obligations to pay a judgment, settlement, or penalty, and reasonable fees and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)Proceeding, whether civil, criminal, administrative administrative, arbitrative, or investigative, and whether formal or informal, arising out of or pertaining to any action or omission, including any action or omission occurring before in connection with the fact that the Indemnified Party is or was an officer, director, employee, fiduciary, or agent of the Company or its Subsidiaries, or of another entity if such service was at the request of the Company, whether asserted or claimed prior to, at, or after the date hereofEffective Time. In the event of any such claimProceeding, actionParent and the Surviving Corporation shall, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Companyfullest extent permitted under applicable Law, promptly after statements therefor are received and (ii) the Company shall cooperate advance to each Indemnified Party reasonable expenses incurred in the defense of the Proceeding (provided that any such matter; Person to whom expenses are advanced shall have provided, howeverto the extent required by the DGCL, an undertaking to repay such advances if it is finally determined that the Company shall such Person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldentitled to indemnification).
(c) The Notwithstanding anything to the contrary in this Agreement, the Company may purchase prior to the Effective Time, and if the Company does not purchase prior to the Effective Time, the Surviving Corporation shall maintain until purchase at or after the earlier Effective Time, a “tail” policy under the current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated by this Agreement), which tail policy (i) will be effective for a period from the sixth anniversary of Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective to such directors and officers as the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained coverage provided by the Company (such existing policies; provided that the Company premium for such tail policy may substitute therefor policies not be in excess of at least three hundred percent (300%) of the same coverage containing terms last annual premium paid prior to the Effective Time. Parent shall cause such policy to be maintained in full force and conditions which are not less favorable)effect for their full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) In Without limiting any of the event rights or obligations under this Section 6.5, from and after the Effective Time, the Surviving Corporation shall maintain in full force and effect for a period of six (6) years following the date hereof, and shall comply with the terms and conditions of, any agreement in effect as of the date hereof between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party and that has been made available to Parent or filed with the SEC.
(e) This Section 6.5 shall survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Person or entity referred to in this Section 6.5. The indemnification and advancement provided for in this Section 6.5 is not exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, Contract, or otherwise. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of resulting from such consolidation or merger or (ii) transfers all or substantially all a majority of its properties and assets to any personPerson, then, and in each such case, Parent shall make proper provision shall be made so provisions such that the successors and assigns of the Company shall Surviving Corporation assume the applicable obligations set forth in this Section 56.5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (TESARO, Inc.), Merger Agreement (TESARO, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For Parent and the Merger Sub agree that all rights to indemnification, advancement of expenses, exculpation, limitation of liability and any and all similar rights now existing in favor of each present and former director, officer, employee and agent of Company and each Company Subsidiary (collectively, the "Indemnified Parties") as provided in the Company's present charter or by-laws in effect on the date hereof, shall survive the Merger and shall continue in full force and effect for a period ending on the earlier of (i) the sixth anniversary of six years from the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or any time prior to the time of the consummation of the Offer Effective Time were directors, officers, fiduciaries employees or agents of the Company, unless such modification shall be required by Law.
(b) The Company shalllaw, and Parent agrees to cause the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of Surviving Corporation to comply with its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matterobligations thereunder; provided, however, that in the Company event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect to any such claim or claims shall not be liable for continue until the disposition of any settlement effected without its written consent (which consent shall not be unreasonably withheld)and all such claims.
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(db) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation Surviving Corporation or entity of such consolidation or merger or (ii) transfers all or substantially all a material amount of its properties and assets to any personperson in a single transaction or a series of transactions, then, and in each such case, Parent will either guaranty the indemnification obligations referred to in this Section 7.04 or will make or cause to be made proper provision shall be made so that the successors and assigns of the Company shall or the Surviving Corporation, as the case may be, assume the indemnification obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended described herein for the benefit of the Indemnified Parties and have substantially equal financial ability as the Company (immediately prior to the Effective Time) to satisfy the obligations of the parties pursuant to this Section 7.04 as a condition to such merger, consolidation or transfer becoming effective.
(c) The provisions of this Section 7.04 are (i) intended to be for the benefit of, and will be enforceable by, each of the Indemnified Parties and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
(d) For a period of six years after the Effective Time, Parent shall maintain in effect the directors' and officers' liability insurance policies maintained by Company or, if not available, directors' and officers' liability insurance policies covering the directors and officers of the Company (and their respective heirsheirs and executors, executors if such coverage may be obtained at no additional cost) as of the date hereof, with coverages and personal representatives other terms substantially as favorable to such directors and officers as is currently in effect; provided, however, that in no event shall Parent be enforceable required to expend in any one year in excess of 150% of the annual premium currently paid by them as third party beneficiaries hereofCompany for such coverage, which current premium amount is set forth in Section 7.04 of the Company Disclosure Schedule, and if the premium for such coverage exceeds such amount, Parent shall purchase a policy with the greatest coverage available for such 150% of the annual premium.
Appears in 3 contracts
Samples: Merger Agreement (Doubleclick Inc), Merger Agreement (Doubleclick Inc), Merger Agreement (Doubleclick Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Topco shall cause the earlier Surviving Corporation’s certificate of (i) the sixth anniversary of the Effective Time incorporation and (ii) the Liquidation Date, the By-laws of the Company shall bylaws to contain provisions no less favorable with respect to indemnification or indemnification, advancement of expenses, and exculpation from liabilities of current (as of the liability Effective Time) and former directors, officers and employees of directors the Company than are set forth currently provided in Article VII, Section 7.2 the Certificate of Incorporation and Bylaws as of the By-laws of the Companydate hereof, and such which provisions shall may not be amended, repealed repealed, or otherwise modified in any manner that would adversely affect adversely the rights thereunder of any such individuals who at or prior to until the time later of (i) the expiration date of the consummation statute of limitations applicable to such matters and (ii) six (6) years from the Offer were directorsEffective Time, officersand in the event that any Action is pending or asserted or any claim made during such period, fiduciaries until the disposition of any such Action or agents of the Companyclaim, unless such amendment, modification shall be or repeal is required by applicable Law, in which case Topco shall, and shall cause the Surviving Corporation to, make such changes to the certificate of incorporation and the bylaws of the Surviving Corporation as to have the least adverse effect on the rights of the individuals referenced in this Section 5.7.
(b) The Without limiting any additional rights that any Person may have under any agreement or Company shallPlan, to from and after the fullest extent permitted under applicable LawEffective Time and until the date that is six (6) years from the Closing Date, the Surviving Corporation shall indemnify and hold harmless each present and (as of the Effective Time) or former director, officer, employee or fiduciary and agent of the Company and each of its subsidiaries (collectivelyeach, the "together with such Person’s heirs, executors or administrators, an “Indemnified Parties") Party”), against all costs obligations to pay a judgment, settlement, or penalty and reasonable and documented out-of-pocket expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid incurred by the Indemnified Party in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)Action, whether civil, criminal, administrative administrative, arbitrative, or investigative, and whether formal or informal, arising out of or pertaining to any action or omission, including any action or omission occurring before in connection with the fact that the Indemnified Party is or was an officer, director, employee, or fiduciary of the Company or, while serving as an officer, director, employee or fiduciary of the Company, is or was serving as an officer, director, employee or fiduciary of any of the Company’s Subsidiaries or another entity if such service was at the request of the Company, whether asserted or claimed prior to, at, or after the Effective Time, to the fullest extent permitted under applicable Law; provided, that, employees and fiduciaries of the Company shall only be included as Indemnified Parties to the extent the Company provides similar rights to indemnification and exculpation to such Persons as of the date hereofof this Agreement. In the event of any such claimAction, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall pay the advance to such Indemnified Party reasonable fees and documented out-of-pocket expenses of counsel selected by the Indemnified Parties, which counsel shall that may be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate incurred by such Indemnified Party in the defense of such Action, including reasonable and documented out-of-pocket attorneys’ fees (provided that any such matter; Indemnified Party to whom expenses are advanced shall have provided, howeverto the extent required by the DGCL, an undertaking to repay such advances if it is finally determined that the Company shall such Indemnified Party is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldentitled to indemnification).
(c) The Notwithstanding anything to the contrary in this Agreement, the Company may purchase prior to the Effective Time, and if the Company does not purchase prior to the Effective Time, the Surviving Corporation shall maintain until purchase at or after the earlier of Effective Time, a tail policy under the current directors’ and officers’ liability insurance policies maintained at such time by the Company, which tail policy (i) will be effective for a period from the sixth anniversary of Effective Time through and including the date that is six (6) years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective (in the Liquidation Date, if available, aggregate) to such directors and officers as the current directors' and officers' liability insurance policies maintained coverage provided by the Company (such existing policies; provided that the Company aggregate premium for such tail policy may substitute therefor policies not be in excess of at least two hundred fifty percent (250%) of the same coverage containing terms last annual premium paid prior to the Effective Time (the “Maximum Tail Premium”). Parent shall cause the Surviving Corporation to (x) maintain such policy in full force and conditions which are not less favorable)effect for the full term thereof and (y) honor all obligations thereunder.
(d) In Without limiting any of the event rights or obligations under this Section 5.7, from and after the Effective Time, the Surviving Corporation shall keep in full force and effect, and shall comply with the terms and conditions of, any agreement in effect as of the date of this Agreement and made available to Parent between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party and Parent will cause the Surviving Corporation to perform its obligations pursuant to such agreements.
(e) This Section 5.7 will survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Indemnified Party. The indemnification and advancement provided for in this Section 5.7 is not exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, Contract or otherwise. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of resulting from such consolidation or merger merger, or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, Topco shall use commercially reasonable efforts to make proper provision shall be made so provisions such that the successors and assigns of the Company shall applicable acquiror, successor or assign will assume the applicable obligations set forth in this Section 55.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 3 contracts
Samples: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time Time, Parent shall, and (ii) shall cause the Liquidation DateSurviving Corporation to, the By-laws indemnify and hold harmless each present and former director and officer of the Company shall contain provisions no less favorable with respect to indemnification or and each person who served at the liability of directors than are set forth in Article VII, Section 7.2 request of the By-laws Company as a director, officer or trustee of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall"Indemnified Parties"), to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before in their capacity as an officer, director, employee or after fiduciary, including, without limitation, the transactions contemplated by this Agreement (and shall also advance, or cause to be advanced, expenses as incurred to the fullest extent permitted under applicable Law). Parent agrees that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's Certificate of Incorporation and By-Laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six (6) years from the Effective Time. In From and after the Effective Time, Parent shall assume the obligations of the Company to provide indemnification to Indemnified Parties under indemnification agreements or similar contracts.
(b) Without limiting or expanding the foregoing, in the event of any such claim, action, suit, proceeding or investigationinvestigation (a "Claim") that is subject to Section 6.05(a) is brought against any Indemnified Party at or after the Effective Time, (i) the Company Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation, (ii) Parent and the Surviving Corporation shall pay the all reasonable fees and expenses of such counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Parties promptly after as statements therefor are received received, and (iiiii) Parent and the Company shall cooperate Surviving Corporation will use all reasonable efforts to assist in the vigorous defense of any such matter; provided, however, provided that neither Parent nor the Company Surviving Corporation shall not be liable for any settlement of any Claim effected without its written consent (consent, which consent consent, however, shall not be unreasonably withheldwithheld or delayed. Any Indemnified Party wishing to claim indemnification under this Section 6.05, upon learning of any such Claim, shall notify Parent (but the failure so to notify Parent shall not relieve Parent and the Surviving Corporation from any liability that either may have under this Section 6.05 except to the extent such failure materially prejudices them). The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless, under applicable standards of professional conduct, there is or would reasonably be expected to be a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) The Company shall maintain until the earlier For a period of six (i6) the sixth anniversary of years after the Effective Time and (ii) the Liquidation DateTime, if available, Parent shall cause to be maintained in effect the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Parent may substitute therefor policies of at least the same coverage containing other terms and conditions which are not no less favorable).
(dadvantageous) In with respect to claims arising from facts or events that occurred prior to the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and Effective Time; provided further that Parent shall not be required to maintain such policies to the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so extent that the successors and assigns annual premiums (or incremental annual premiums in the case of substitute policies that provide coverage to other Persons or for other matters) exceed 200% of the Company shall assume most recent annual premium paid for such policies by the obligations set forth in this Section 5Company.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 3 contracts
Samples: Merger Agreement (Healtheon Webmd Corp), Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Careinsite Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of six (i6) the sixth anniversary of years from the Effective Time and (ii) the Liquidation DateTime, the Certificate of Incorporation and By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to exculpation, indemnification or the liability and advancement of directors expenses than are set forth in Article VII, Section 7.2 the Certificate of the Incorporation and By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyCompany or any Subsidiary, unless such modification shall be required by applicable Law and then only to the minimum extent required by applicable Law.
(b) The Company After the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "“Indemnified Parties"”) against all costs and expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before in their capacity as an officer, director, employee, fiduciary or agent, at or prior to the Effective Time, for a period of six (6) years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall pay pay, in advance of the final disposition of any such claim, action, suit, proceeding or investigation, the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and (ii) the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to this Section 7.07(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided, further, that, in the event that any claim for indemnification is asserted or made within such six (6) year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall maintain until the earlier of in effect for six (i6) the sixth anniversary of years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' ’ and officers' ’ liability insurance policies maintained by the Company covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently (provided and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, not less favorable to such individuals than those of such policy in effect on the date hereof (provided, that the Company Surviving Corporation may substitute therefor policies policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring prior to the Effective Time containing terms and conditions which that are not less favorable, including a “tail” policy); provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 7.07(c) more than an amount per year equal to 250% of current annual premiums paid by the Company for such insurance; provided, however, that in the event of an expiration, termination or cancellation of such current policies, Purchaser or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(d) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 57.07.
(e) Purchaser Parent shall use all reasonable efforts to cause the Company Surviving Corporation to perform all of its the obligations of the Surviving Corporation under this Section 57.07.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 3 contracts
Samples: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII8, Section 7.2 of the By-laws Certificate of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would materially and adversely affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
law. (b) The Regardless of whether the Merger becomes effective, the Company shall indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs to the fullest extent permitted under the Certificate of Incorporation and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out By-laws of or pertaining to any action or omission occurring before or the Company for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company Company, Parent and the Surviving Corporation shall use their respective reasonable best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that Parent and the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring prior to the Effective Time; provided, however, that if the existing policies expire, are terminated or canceled during such period Parent or the Surviving Corporation will use its reasonable best efforts to obtain substantially similar policies. Notwithstanding the foregoing, in no event shall Parent or the Surviving Corporation be required to expend pursuant to this Section 6.07(c) more than an amount per year equal to 200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $183,352 in the aggregate).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Viad Corp), Merger Agreement (Moneygram Payment Systems Inc)
Directors’ and Officers’ Indemnification and Insurance. In the event the Merger is consummated, then until the seventh anniversary of the Effective Time, Parent will, and will cause the Surviving Company and any of their respective subsidiaries, to comply with, fulfill and honor, in any and all respects, all of the obligations of Parent and the Company and any of their respective subsidiaries to their respective present and former directors and officers (athe “Covered Persons”) For a period ending pursuant to indemnification agreements with Parent and the Company or any of their respective subsidiaries in effect on the earlier Effective Time and pursuant to their respective Organization Documents, in each case, in effect on the Effective Time (the “Indemnification Provisions”), with respect to claims arising out of acts or omissions occurring at or prior to the Effective Time which are asserted after the Effective Time, including with respect to this Agreement, the Merger and the other transactions contemplated herein. Any claims for indemnification (iand rights for advancement of expenses) made on or prior to the sixth seventh anniversary of the Effective Time shall survive such anniversary until the final resolution thereof. Parent shall, and (ii) shall cause the Liquidation DateSurviving Company and all of their respective subsidiaries to, keep in full force and effect all Indemnification Provisions and neither Parent, the By-laws Surviving Company, any of their respective subsidiaries shall amend, modify or terminate any of the Company shall contain provisions no less favorable with respect to indemnification Indemnification Provisions, in each case, until the later of the seventh anniversary of the Effective Time or the liability final resolution of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified any claims for indemnification in any manner that would adversely affect adversely the any rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Lawany Covered Person.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Bimini Capital Management, Inc.), Merger Agreement (FlatWorld Acquisition Corp.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on From and after the earlier of Effective Time Parent agrees that it will and will cause the Surviving Corporation to (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former directorharmless, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including attorneys' attorney's fees), judgments, fines, losses, claims, damages, damages or liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out and provide advancement of expenses to, all past and present directors, officers, employees and agents of the Company and its Subsidiaries (in all of their capacities) (A) to the same extent such persons are indemnified or pertaining have the right to any action or omission occurring before or after advancement of expenses as of the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) this Agreement by the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory pursuant to the Company's articles of incorporation, promptly after statements therefor are received bylaws and indemnification agreements, if any, in existence on the date hereof with any directors, officers or employees of the Company and its Subsidiaries and (B) without limitation to clause (A), to the fullest extent permitted by law, in each case, for acts or omissions at or prior to the Effective Time (including for acts or omissions occurring in connection with the adoption and approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's and Parent's (or any successor's) articles of incorporation and by-laws or similar organizational or constitutive documents for a period of six years after the Effective Time, the current provisions, or in the case of Parent, substantially similar provisions (to the fullest extent permitted under Bermuda law) regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the articles of incorporation and bylaws of the Company shall cooperate in the defense and (iii) cause to be maintained for a period of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation Date, if available, the current policies of directors' and officers' liability insurance policies and fiduciary liability insurance maintained by the Company (provided provided, that the Company Parent (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are 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 adoption and approval of this Agreement and the consummation of the transactions contemplated hereby). Such substitute policies shall be issued by insurance companies having the same or better ratings and levels of creditworthiness as the insurance companies that have issued the current policies. The obligations of Parent and the Surviving Corporation under this Section 5.6 shall not less favorablebe terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 5.6 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 5.6 applies shall be third party beneficiaries of this Section 5.6).
(db) In the event the Company If Parent or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any personindividual, corporation or other entity, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent shall assume all of the obligations set forth in this Section 55.6.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Enstar Group Inc), Merger Agreement (Castlewood Holdings LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on From and after the earlier Effective Time, the Surviving Company and its Subsidiaries shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under the DGCL, honor and fulfill in all respects the obligations of the Company and the Company Subsidiaries under (i) the sixth anniversary certificate of incorporation and by-laws (or equivalent organizational documents) of the Effective Time Company and each Company Subsidiary in effect as of the date of this Agreement and (ii) any and all indemnification agreements between the Liquidation DateCompany or any Company Subsidiary and any of their respective present or former directors and officers (collectively, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company“Indemnified Parties”), and such provisions indemnification agreements shall survive the Closing and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Parties, except, in each case, to the extent required by applicable Law. In addition, the certificate of incorporation and by-laws of the Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the Company Charter or the Company Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior the Indemnified Parties and any claim made pursuant to such rights within such six (6) year period shall continue to be subject to this Section 6.04(a) and the time rights provided under this Section 6.04(a) until disposition of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Lawclaim.
(b) The For a period of six (6) years after the Effective Time, the Surviving Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") Party against all costs and expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation Action (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining relating to any action or omission in their capacity as a director or officer of the Company or any Company Subsidiary, occurring on or before or after the date hereofEffective Time, and to the fullest extent permitted by Law, the Surviving Company shall pay all expenses of each Indemnified Party in advance of the final disposition of any such Action, subject to receipt of an undertaking to repay such advances if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to indemnification. In the event of any such claim, action, suit, proceeding or investigationAction, (i) subject to the undertaking described in the previous sentence, the Surviving Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Company, promptly after statements therefor are received and received, (ii) neither Parent nor the Surviving Company shall settle, compromise or consent to the entry of any judgment in any pending or threatened Action to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action and does not contain an admission of fault or wrongdoing or such Indemnified Party otherwise consents and (iii) Parent and the Surviving Company shall cooperate in the defense of any such matter; provided, however, that neither Parent nor the Surviving Company shall not be liable for any settlement effected without its the Surviving Company’s written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided further that, in the event that any claim for indemnification is asserted or made within such six (6)-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim. The rights of each Indemnified Party under this Section 6.04(b) shall be in addition to any rights such person may have under the certificate of incorporation or bylaws (or similar organizational documents) of the Company and the Surviving Company or any of their Subsidiaries, or under any Law or under any indemnification agreement of any Indemnified Party with the Company or any Company Subsidiary.
(c) The Prior to the Effective Time, the Company shall cause to be obtained, effective as of the Effective Time, “tail” insurance policies with a claims period of at least six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance and fiduciary liability insurance in amount and scope (including with respect to coverage and deductibles) at least as favorable as the Company’s existing policies as of immediately prior to the Effective Time for claims arising from facts or events that occurred on or prior to the Effective Time. If for any reason the Company fails to obtain such “tail” insurance policies as of the Effective Time, the Surviving Company shall maintain until the earlier of in effect for six (i6) the sixth anniversary of years from the Effective Time and (ii) the Liquidation Date, if available, the current directors' ’ and officers' ’ liability insurance policies maintained by the Company (provided that as of immediately prior to the Effective Time. Notwithstanding the foregoing, the Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions which that are not less favorable)substantially similar with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company or the Surviving Company, as applicable, be required to expend pursuant to this Section 6.04(c) more than an amount per year equal to 300% of current aggregate annual premiums paid by the Company for such insurance; provided further that in the event of an expiration, termination or cancellation of such current policies, Parent or the Surviving Company shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(d) In the event the Surviving Company or any of its successors or assigns (i) consolidates or amalgamates with or merges into any other person and shall not be the continuing or surviving corporation company or entity of such consolidation consolidation, amalgamation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, the proper provision shall be made so that the successors and assigns of the Company Surviving Company, as the case may be, shall assume succeed to the obligations set forth in this Section 56.04.
(e) Purchaser Parent shall use all reasonable efforts to cause the Surviving Company to perform all of its the obligations of the Surviving Company under this Section 56.04.
(f) This The provisions of this Section 5 is 6.04 shall survive the Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirssuccessors, executors assigns and personal representatives and heirs (each of whom shall be enforceable by them as third party beneficiaries hereofof this Section 6.04) and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. Unless required by applicable Law, this Section 6.04 may not be amended, altered or repealed after the Effective Time in such a manner as to adversely affect the rights of any Indemnified Parties or any of their successors, assigns or heirs without the prior written consent of the affected Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Endosurgery, Inc.), Merger Agreement (Apollo Endosurgery, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at On or prior to the time Closing Date, the Company shall put in place and, thereafter, the Company shall maintain in effect for not less than six years after the Closing Date, the Company's current directors' and officers' insurance policies, if such insurance is obtainable (or policies equivalent in all material respects to those maintained by or on behalf of the consummation of Company and Sea Coast on the Offer were directorsdate hereof, officers, fiduciaries or agents and having at least the same coverage and containing terms and conditions no less advantageous to the current and all former directors and officers of the Company) with respect to acts or failures to act prior to the Closing Date; provided, unless however, that in order to maintain or procure such modification coverage, the Company shall not be required to maintain or obtain policies providing such coverage except to the extent such coverage can be provided at an annual cost of no greater than three (3) times the most recent premium paid by the Company for such coverage for the period from June 25, 2003 through June 25, 2004 (the "Cap"); provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Cap, the Company shall be required to only obtain as much coverage as can be obtained by Lawpaying an annual premium equal to the Cap.
(b) The From and after the Closing Date, the Company shall, shall indemnify and hold harmless to the fullest extent permitted under applicable LawLaw (including by any Governmental Entity), indemnify and hold harmless each present and former directorperson who is, officeror has been at any time prior to the date hereof or who becomes prior to the Closing Date, fiduciary and agent an officer or director of the Company and each of its subsidiaries or Sea Coast (collectivelyeach, the an "Indemnified PartiesParty") against all losses, claims, damages, liabilities, costs and or expenses (including attorneys' attorneys fees), judgments, fines, losses, claims, damages, liabilities penalties and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, Litigation arising out of or pertaining to any action acts or omission occurring before omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Closing Date, whether asserted or claimed prior to, at or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)Closing Date.
(c) The Company shall maintain until keep in effect for a period of not less than six years from the earlier Closing Date (or, in the case of (i) matters occurring prior to the Closing Date which have not been resolved prior to the sixth anniversary of the Effective Time and (ii) the Liquidation Closing Date, if available, until such matters are finally resolved) all provisions in the current directors' Company's certificate of incorporation and officers' bylaws that provide for exculpation of director and officer liability insurance policies maintained and indemnification (and advancement of expenses related thereto) of the past and present officers and directors of the Company to the fullest extent permitted by the Company DGCL and other applicable Laws (provided including by any Governmental Entity), and such provisions shall not be amended except as either required by applicable Law or to make changes permitted by Law that would enhance the Company may substitute therefor policies rights of at least the same coverage containing terms past or present officers and conditions which are not less favorable)directors to indemnification or advancement of expenses.
(d) In the event If the Company or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or other entity and shall not be the continuing or surviving corporation or entity of such the consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any personindividual, thencorporation or other entity, then and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company shall assume all of the obligations set forth in this Section 59.2.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all The provisions of its obligations under this Section 5.
(f) This Section 5 is 9.2 are intended to be for the benefit of the Indemnified Parties and their respective heirsof, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofby, each of the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Aurora Foods Inc /De/), Agreement and Plan of Reorganization and Merger (Sea Coast Foods, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time Parent and (ii) the Liquidation DatePurchaser agree that, and shall cause that, the By-laws Surviving Corporation’s certificate of the Company incorporation and bylaws shall contain provisions no less favorable with respect to indemnification or and exculpation from liabilities of the liability present and former directors, officers and employees of directors the Company than are set forth currently provided in Article VII, Section 7.2 of the By-laws of the Company’s Certificate of Incorporation and Bylaws, and such which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect adversely the rights thereunder of any such individuals who at until the later of (i) the expiration of the statutes of limitations applicable to such matters and (ii) six (6) years from the Effective Time, and, in the event that any Proceeding is pending or prior asserted or any clam made during such period, until the disposition of any such Proceeding or claim,unless such amendment, modification or repeal is required by applicable Law in which case Parent agrees, and shall cause the Surviving Corporation, to make such changes to the time certificate of incorporation and the consummation bylaws as to have the least adverse affect on the rights of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.the individuals referenced in this Section 6.5.
(b) The Without limiting any additional rights that any Person may have under any agreement or Company shallPlan described in Section 4.10 of the Company Disclosure Schedule, to from and after the fullest extent permitted under applicable LawEffective Time, the Surviving Corporation shall indemnify and hold harmless each present (as of the Effective Time) or former officer and former director, officer, fiduciary and agent director of the Company (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and each of its subsidiaries (collectively, the "“Indemnified Parties") ”), against all costs and expenses (including attorneys' fees)claims, losses, liabilities, damages, judgments, inquiries, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries, or of another entity if such service was at the request of the Company, or any action or omission occurring before by such person in any such capacity, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent the Surviving Corporation is permitted to do so under applicable law and the Certificate of Incorporation or Bylaws as at the date hereof. In the event of any such claimproceeding, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and each Indemnified Party will be entitled to advancement of expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate incurred in the defense of any the proceeding from the Surviving Corporation to the same extent such matter; provided, however, that Persons have the right to advancement of expenses from the Company as of the date of this Agreement pursuant to the Certificate of Incorporation and Bylaws (provided that any Person to whom expenses are advanced shall have provided an undertaking, but only to the extent required by the DGCL, to repay such advances if it is finally determined that such Person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldentitled to indemnification).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of purchase by the Effective Time and (ii) the Liquidation Date, if available, tail policies to the current directors' ’ and officers' ’ liability insurance policies maintained on the date of this Agreement by the Company, which tail policies (i) shall not have an aggregate premium in excess of three hundred percent (300%) of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the existing policies (provided that which amount is set forth in Section 6.5 of the Company may substitute therefor policies of Disclosure Schedule), (ii) shall be effective for a period from the Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time, and (iii) shall contain coverage that is at least as protective to such directors and officers as the same coverage containing terms provided by such existing policies (complete and conditions accurate copies of which are have been made available to Parent); provided, however, that, if equivalent coverage cannot less favorable)be obtained or can be obtained only by paying an aggregate premium in excess of three hundred percent (300%) of such amount, the Company shall only be required to obtain (and the Surviving Corporation shall only be required to maintain) as much tail coverage as can be obtained by paying an aggregate premium equal to three hundred percent (300%) of such amount. Parent shall cause such policy to be maintained in full force and effect for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) In This Section 6.5 shall survive the event consummation of the Merger and is intended to benefit, and shall be enforceable by, any Person or entity referred to in clause (a) of this Section 6.5 (whether or not parties to this Agreement). The indemnification provided for in this Section 6.5 shall not be deemed exclusive of any other rights to which the Indemnified Party is entitled pursuant to Law or any Contract set forth in Section 6.5(d) of the Company Disclosure Schedule. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of resulting from such consolidation or merger or (ii) transfers all or substantially all majority of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation shall assume the applicable obligations set forth in this Section 56.5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Sirtris Pharmaceuticals, Inc.), Merger Agreement (Glaxosmithkline PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on In the earlier event of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification any threatened or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any actual claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminalcriminal or administrative, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of including any such claim, action, suit, proceeding or investigation, (i) in which any present or former director or officer of the Company shall pay or any of its Subsidiaries (together, the reasonable “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by any such Person in such capacity taken prior to the Effective Time, the Surviving Corporation (the “Indemnifying Party”) will, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required by the Company Organizational Documents (or any similar organizational document) of the Company or any of its Subsidiaries, when applicable, and any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, legal and other expenses (including reimbursement for legal and other fees and expenses incurred in advance of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense final disposition of any claim, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement actually and reasonably incurred by such matterIndemnified Party in connection with such claim, action, suit, proceeding or investigation; provided, however, that unless otherwise provided in any relevant indemnification agreement, the Company shall Surviving Corporation will not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent shall and will not be unreasonably withheldobligated 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 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 Indemnified Party to repay such 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 applicable Law.
(b) The Surviving Corporation will (i) maintain in effect for a period of six years after the Effective Time, if available, the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company immediately prior to the Effective Time (provided that the Surviving Corporation may substitute therefor policies with reputable and financially sound carriers, of at least the same coverage and amounts containing terms and conditions that are no less favorable to the directors and officers of the Company) or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are no less favorable to the directors and officers of the Company, in each case with respect to claims arising out of or relating to events which occurred before or at the Effective Time; provided, however that in no event will the Surviving Corporation be required to expend an annual premium for such coverage in excess of 300% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement (the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, the Surviving Corporation will obtain that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium.
(c) The Company shall maintain until provisions of this Section 5.8 will survive the earlier of (i) Closing and are intended to be for the sixth anniversary of benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and (ii) the Liquidation Datetheir rights under this Section 5.8 are in addition to, if availableand will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the current directors' and officers' liability insurance policies maintained by Company Organizational Documents (or similar organizational document) of the Company (provided that the Company may substitute therefor policies Surviving Corporation or any of at least the same coverage containing terms and conditions which are not less favorable)its Subsidiaries or otherwise.
(d) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their respective certificate of incorporation or bylaws (or similar organizational document) for a period of six years after the Effective Time, provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, with respect to each such entity, no less advantageous to the intended beneficiaries than the corresponding provisions contained in such organizational documents as of the date of this Agreement.
(e) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger Persons, or (ii) transfers all or substantially all of its properties and or assets to any personPerson, then, then and in each such case, proper provision shall will be made so that the successors and applicable successors, assigns of the Company shall or transferees assume the obligations set forth in this Section 55.8.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Neubauer Joseph), Merger Agreement (Aramark Corp/De)
Directors’ and Officers’ Indemnification and Insurance. Following the Effective Time, Parent shall (a) For a period ending on the earlier indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of Company and its Subsidiaries (in all of their capacities) (i) to the sixth anniversary same extent such persons are indemnified or have the right to advancement of expenses as of the Effective Time date of this Agreement by Company pursuant to Company's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with, or for the benefit of, any directors, officers and employees of Company and its Subsidiaries and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect without limitation to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
clause (b) The Company shalli), to the fullest extent permitted under applicable Lawby law, indemnify and hold harmless in each present and former director, officer, fiduciary and agent of case for acts or omissions occurring at or prior to the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses Effective Time (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (b) include and cause to be maintained in effect in the Surviving Entity's (or any claim, action, suit, proceeding or investigation (whether arising before or successor's) certificate of incorporation and by-laws for a period of six years after the date hereof)Effective Time, whether civilprovisions regarding elimination of liability of directors, criminalindemnification of officers, administrative or investigativedirectors and employees and advancement of expenses which are, arising out of or pertaining to any action or omission occurring before or after in the date hereof. In the event of any such claimaggregate, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory no less advantageous to the Company, promptly after statements therefor are received and (ii) intended beneficiaries than the Company shall cooperate corresponding provisions contained in the defense current certificate of any such matter; provided, however, that the incorporation and by-laws of Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
and (c) The Company shall maintain until the earlier cause to be maintained for a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation Date, if available, the current policies of directors' and officers' liability insurance policies and fiduciary liability insurance maintained by the Company (provided that the Company Parent (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions which are 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 Parent be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by Company for such insurance; and, provided further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall obtain a policy with the greatest coverage available for a cost not less favorable).
(d) In the event the Company or any exceeding such amount. The obligations of its successors or assigns (i) consolidates with or merges into any other person and Parent under this Section 7.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.6 applies without the continuing or surviving corporation or entity consent of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5affected indemnitee.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Bruker Axs Inc), Merger Agreement (Bruker Daltonics Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Parent and Purchaser agree that, until the earlier of (i) the sixth six year anniversary date of the Effective Time and (ii) the Liquidation DateTime, the By-laws Surviving Corporation’s articles of the Company incorporation and bylaws shall contain provisions no less favorable with respect to indemnification of the (as of or prior to the liability Control Time) former directors, officers and employees of directors the Company than are set forth currently provided in Article VII, Section 7.2 of the By-laws of the Company’s Articles of Incorporation and Bylaws, and such which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect adversely the rights thereunder of any such individuals who at until the expiration of the statutes of limitations applicable to such matters or prior unless such amendment, modification or repeal is required by applicable Law in which case Parent agrees, and shall cause the Surviving Corporation, to make such changes to the time articles of incorporation and the bylaws as to have the least adverse affect on the rights of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Lawindividuals referenced in this Section 6.5.
(b) The Without limiting any additional rights that any Person may have under any agreement or Company shallPlan described in Section 4.10 of the Company Disclosure Schedule, to from and after the fullest extent permitted under applicable LawEffective Time, indemnify the Surviving Corporation shall indemnify, defend and hold harmless each present and former directorperson who was, officeras of or prior to the Effective Time, fiduciary and agent either an officer and/or director of the Company (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and each of its subsidiaries (collectively, the "“Indemnified Parties") ”), against all costs and expenses (including attorneys' fees)claims, losses, liabilities, damages, judgments, inquiries, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)proceeding, whether civil, criminal, administrative or investigative, arising out of the fact that the Indemnified Party is or pertaining to was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries, or of another entity if such service was at the request of the Company, or any action or omission occurring before by such person in any such capacity, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent the Surviving Corporation is permitted to do so under applicable law and its articles of incorporation or bylaws as at the date hereof. In the event of any such claimproceeding, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and each Indemnified Party will be entitled to advancement of expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate incurred in the defense of any the proceeding from the Surviving Corporation to the same extent such matter; provided, however, that Persons have the right to advancement of expenses from the Company as of the date of this Agreement pursuant to the Articles of Incorporation and Bylaws (provided that, to the same extent required pursuant to the Articles of Incorporation and Bylaws, any Person to whom expenses are advanced shall have provided an undertaking to repay such advances if it is finally determined that such Person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldentitled to indemnification).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of purchase by the Effective Time and (ii) the Liquidation Date, if available, tail policies to the current directors' ’ and officers' ’ liability insurance policies maintained on the date of this Agreement by the Company, which tail policies (i) shall not have an aggregate premium in excess of 300% of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the existing policies (provided that which amount is set forth in Section 6.5 of the Company may substitute therefor policies of Disclosure Schedule), (ii) shall be effective for a period from the Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time, and (iii) shall contain coverage that is at least as protective to such directors and officers as the same coverage containing terms provided by such existing policies (complete and conditions accurate copies of which are have been made available to Parent); provided, however, that, if equivalent coverage cannot less favorable)be obtained or can be obtained only by paying an aggregate premium in excess of 300% of such amount, the Company shall only be required to obtain (and the Surviving Corporation shall only be required to maintain) as much tail coverage as can be obtained by paying an aggregate premium equal to 300% of such amount. Parent shall cause such policy to be maintained in full force and effect for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) In This Section 6.5 shall survive the event consummation of the Merger and is intended to benefit, and shall be enforceable by, any Person or entity referred to in clause (a) of this Section 6.5 (whether or not parties to this Agreement). The indemnification provided for in this Section 6.5 shall not be deemed exclusive of any other rights to which the Indemnified Party is entitled pursuant to Law or any Contract set forth in Section 6.5(d) of the Company Disclosure Schedule. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of resulting from such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation shall assume the applicable obligations set forth in this Section 56.5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Genelabs Technologies Inc /Ca), Merger Agreement (Glaxosmithkline PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Without limiting any additional rights that any employee may have under any Company Plan, from the earlier of (i) Effective Time through the sixth anniversary of the date on which the Effective Time and (ii) the Liquidation Dateoccurs, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company Parent shall, to or shall cause the fullest extent permitted under applicable LawSurviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former director, officer, fiduciary and agent officer or director of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") ), against all costs and expenses (including attorneys' fees)claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damagesincluding, liabilities without limitation, attorneys' fees and settlement amounts paid disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of actions taken by them in their capacity as officers or pertaining directors prior to the Effective Time (including, without limitation, this Agreement and the transactions and actions contemplated hereby) or taken by them at the request of the Company or any action of its subsidiaries, whether asserted or omission occurring before claimed prior to, at or after the date hereofEffective Time, to the fullest extent permitted under applicable law. In Each Indemnified Party will be entitled to advancement of expenses incurred in the event defense of any such claim, action, suit, proceeding or investigationinvestigation from Parent or the Surviving Corporation within ten business days of receipt by Parent from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, (i) if and only to the Company shall pay the reasonable fees and expenses of counsel selected extent required by the Indemnified PartiesDGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company's Certificate of Incorporation and By-laws, which counsel provisions shall not be reasonably satisfactory to amended, repealed or otherwise modified for a period of six years from the Company, promptly after statements therefor are received and (ii) Effective Time in any manner that would adversely affect the Company shall cooperate in the defense rights thereunder of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)individuals.
(c) The Company Parent shall, or shall maintain until cause the earlier of (i) Surviving Corporation to maintain, at no expense to the sixth anniversary of beneficiaries, in effect for six years from the Effective Time and (ii) the Liquidation Date, if available, the current policies of the directors' and officers' liability insurance policies maintained by the Company (provided that Parent or the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable).
(dadvantageous to any beneficiary thereof) In with respect to matters existing or occurring at or prior to the event Effective Time; provided, however, that during this period, Parent shall not be required to maintain any coverage in excess of the amount that can be obtained for the remainder of the period for an annual premium of 200% of the current annual premium paid by the Company for its existing coverage. Parent agrees to honor and perform under, and to cause the Surviving Corporation's to honor and perform under, all indemnification agreements entered into by the Company or any of its subsidiaries.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation or Parent, as the case may be, shall assume succeed to the obligations set forth in Section 6.6 and this Section 56.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (WPP Group PLC), Merger Agreement (Grey Global Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the The By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors and exculpation than are set forth in Article VII, Section 7.2 11 of the By-laws Certificate of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each Subsidiary and each fiduciary and agent of its subsidiaries each such director and officer (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the date hereofEffective Time, until the expiration of the statute of limitations relating thereto (and shall pay any expenses in advance of the final disposition of such action or proceeding to each Indemnified Party to the fullest extent permitted under Delaware Corporation Law, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under Delaware Corporation Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.or
Appears in 2 contracts
Samples: Merger Agreement (Petrofina Delaware Inc), Merger Agreement (Fina Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the The By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 IX of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that manner.that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each Subsidiary, including but not limited to the members of its subsidiaries the Special Committee (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the date hereofEffective Time, until the expiration of the statute of limitations relating thereto (and shall pay any expenses as they are incurred in advance of the final disposition of such action or proceeding to each Indemnified Party to the fullest extent permitted under the NYBCL, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under the NYBCL). In the event of any such claim, action, suit, proceeding or investigation, investigation (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided further that neither the Company nor the Surviving Corporation shall be obligated pursuant to this Section 5.05(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action except (x) that the persons who served as directors of the Company who were not designees of Parent shall be entitled to retain one additional counsel (plus appropriate local counsel) to represent them at the expense of the Company or the Surviving Corporation, and (y) to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Company or the Surviving Corporation; and provided further that, in the event that any claim for indemnification is asserted or made within the period prior to the expiration of the applicable statute of limitations, all rights to indemnification in respect of such claim shall continue until the disposition of such claim. All rights under this Section 5.05(b) shall be deemed to be a contract between the Company and each of the Indemnified Parties.
(c) The Company and, after the Effective Time, the Surviving Corporation shall maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company covering those persons who are currently covered by such policies (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable)) with respect to matters occurring prior to the Effective Time.
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any other person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or, at Parent's option, Parent, shall assume the obligations set forth (a) in this Section 5.
5.05, (eb) Purchaser shall use all reasonable efforts to cause in the indemnification agreement dated October 8, 1997, between the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for and the benefit members of the Indemnified Parties Special Committee and their respective heirs(c) in the indemnification agreements dated as of March 1, executors 1994, between the Company and personal representatives and shall be enforceable by them as third party beneficiaries hereofcertain directors and/or officers of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Pinault Printemps Redoute Sa Et Al), Merger Agreement (Rexel Sa)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary The By-Laws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 12 of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, fiduciaries officers or agents employees of the Company, unless such modification shall be required by Law.
(b) The Company shall, Parent shall use its reasonable best efforts to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid cause to be maintained in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable effect for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of six years from the Effective Time and (ii) the Liquidation Date, if available, the current policies of the directors' and officers' liability insurance policies maintained by the Company (provided that the Company Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)advantageous) with respect to matters occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 150% of current annual premiums paid by the Company (which the Company represents and warrants to be not more than $250,000) to maintain or procure insurance coverage pursuant hereto.
(dc) In For six years after the event Effective Time, Parent agrees that it will or will cause the Company or any of its successors or assigns (i) consolidates with or merges into any other person Surviving Corporation to indemnify and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties hold harmless each present and assets to any person, then, former director and in each such case, proper provision shall be made so that the successors and assigns officer of the Company Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") (but only to the extent such Costs are not otherwise covered by insurance and paid) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall assume the obligations set forth in this Section 5.
(e) Purchaser ,or shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirsSurviving Corporation to, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.also
Appears in 2 contracts
Samples: Merger Agreement (George Acquisition Inc), Merger Agreement (Goulds Pumps Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending From and after the Acceptance Time Parent will, and will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company pursuant to any indemnification agreements between the Company and its directors and officers in effect immediately prior to the Acceptance Time and previously made available to Parent prior to the execution hereof, and any indemnification and limitation of liability provisions under the Company’s Restated Certificate of Incorporation and Bylaws as in effect on the earlier date hereof. The Certificate of (i) the sixth anniversary of the Effective Time Incorporation and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the and limitation of liability of directors for directors, officers, employees, fiduciaries and agents (“Indemnified Parties”) than are set forth in Article VII, Section 7.2 the Restated Certificate of the Incorporation and By-laws of the CompanyCompany as in effect on the date hereof, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shallshall obtain a prepaid tail policy prior to, or contemporaneously with, the Acceptance Time, which policy provides the Indemnified Parties covered by the Company’s existing directors and officers’ liability insurance policy with directors’ and officers’ liability insurance for events occurring prior to the fullest extent permitted under applicable LawAcceptance Time on substantially the same terms of such existing insurance, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the a period ending no earlier of (i) than the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable)Time.
(dc) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision Parent shall be made so ensure that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 57.06.
(ed) Purchaser shall use all reasonable efforts to cause the Company to perform all The provisions of its obligations under this Section 5.
7.06 shall survive the acceptance of Shares for payment pursuant to the Offer and the consummation of the Merger and are (fi) This Section 5 is intended to be for the benefit of, and will be enforceable by, each of the Indemnified Parties and their respective heirssuccessors, executors assigns and personal representatives heirs and shall be enforceable (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by them as third party beneficiaries hereofcontract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Cryocor Inc), Merger Agreement (Cryocor Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on T he Surviving Corporation shall, and Newco shall cause the earlier of Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of PNU and its Subsidiaries (in all of their capacities), to the sixth anniversary same extent such persons are indemnified or have the right to advancement of expenses as of the Effective Time and (ii) the Liquidation Datedate of this Agreement by PNU pursuant to PNU's certificate of incorporation, the Byby-laws and indemnification agreements, if any, in existence on the date hereof with any directors, officers and employees of the Company shall contain provisions no less favorable with respect to indemnification PNU and its Subsidiaries for acts or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who omissions occurring at or prior to the time Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' feestransactions contemplated hereby), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate include and cause to be maintained in effect in the defense Surviving Corporation's (or any successor's) certificate of any such matter; providedincorporation and by-laws for a period of six years after the Effective Time, howeverthe current provisions regarding elimination of liability of directors, that indemnification of officers, directors and employees and advancement of expenses contained in the Company shall not certificate of incorporation and by-laws of PNU, as the case may be, and (iii) cause to be liable maintained for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation Date, if available, the current policies of directors' and officers' liability insurance policies and fiduciary liability insurance maintained by the Company PNU (provided that the Company Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not are, in the aggregate, no less favorable).
(dadvantageous to the insured) In 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 Surviving Corporation be required to expend in any one year an amount in excess of its successors or assigns (i) consolidates with or merges into any other person and shall not be 200% of the continuing or surviving corporation or entity annual premiums currently paid by PNU for such insurance; and, provided, further, that if the annual premiums of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personinsurance coverage exceed such amount, then, and in each such case, proper provision the Surviving Corporation shall be made so that obligated to obtain a policy with the successors and assigns of the Company shall assume the obligations set forth in this Section 5greatest coverage available for a cost not exceeding such amount.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Pharmacia & Upjohn Inc), Merger Agreement (Monsanto Co)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier Parent and Merger Sub agree that all rights to exculpation and indemnification (and all rights to advancement of (iexpenses relating thereto) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification for acts or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who omissions occurring at or prior to the time Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement, including the Merger), now existing in favor of the consummation Indemnitees as provided in the Charter or Bylaws (or such equivalent organizational or governing documents of the Offer were directors, officers, fiduciaries or agents any of the Company’s Subsidiaries as in effect on the date of this Agreement) or in any Contract between such Indemnitee and the Company or any of its Subsidiaries (in each case as in effect on the date of this Agreement) shall survive the Merger and shall continue in full force and effect. From and after the Effective Time, unless Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to (x) all acts or omissions by them in their capacities as such modification shall be required by Law.
(b) The Company shall, at any time at or prior to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries Effective Time or (collectively, the "Indemnified Parties"y) against all any costs and or expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to the Merger, this Agreement and any transactions contemplated hereby, in either case, to the fullest extent permitted by (i) the Charter or Bylaws (or such equivalent organizational or governing documents of any of the Company’s Subsidiaries as in effect on the date of this Agreement), (ii) any indemnification agreement of the Company or its Subsidiaries or other applicable Contract as in effect on the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnitees or (iii) applicable Law. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the Indemnitees than those set forth in the Charter and Bylaws and the Company’s Subsidiaries’ organizational documents as of the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnitees.
(b) Without limiting the provisions of Section 6.6(a), to the fullest extent the Company would have been permitted to do so under applicable Law, Parent and the Surviving Corporation will pay in advance of the final disposition of any claim, action, suit, proceeding or investigation the expenses (including attorneys’ fees) of any Indemnitee upon receipt of a written affirmation by the Indemnitee of a good faith belief that the criteria for indemnification set forth in MBCA Section 302A.521 subd. 2 have been satisfied and a written undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the contrary contained in this Section 6.6(b) or elsewhere in this Agreement, neither Parent nor the Surviving Corporation shall (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.6(b) unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnitees from all liability arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, and does not include an admission of fault or wrongdoing by any Indemnitee.
(c) Prior to the Effective Time, at the Company’s option, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancelable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period or time at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies as in effect as of the date of this Agreement. If such “tail” prepaid policy has been obtained by either the Company or the Surviving Corporation prior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation. If the Company or the Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Company Surviving Corporation shall pay continue to maintain in effect, for a period of at least six (6) years from and after the reasonable fees and expenses Effective Time, the D&O Insurance in place as of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to date of this Agreement with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, promptly after statements therefor conditions, retentions and limits of liability that are received and no less favorable than the coverage provided under the Company’s existing policies as of the date of this Agreement, or (ii) Parent will provide, or cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s D&O Insurance with comparable D&O Insurance that provides coverage for events occurring at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, that is no less favorable than the existing policy of the Company shall cooperate in as of the defense date of any such matterthis Agreement or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that Parent and the Company Surviving Corporation shall not be liable required to pay an annual premium for any settlement effected without its written consent the D&O Insurance in excess of three hundred percent (which consent shall not be unreasonably withheld).
(c300%) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained annual premium currently paid by the Company (provided for such insurance; provided, further, that if the Company may substitute therefor policies annual premiums of at least such insurance coverage exceed such amount, Parent or the same Surviving Corporation shall be obligated to obtain a policy with the greatest coverage containing terms and conditions which are available, with respect to matters occurring prior to the Effective Time, for a cost not less favorable)exceeding such amount.
(d) The Indemnitees to whom this Section 6.6 applies shall be third-party beneficiaries of this Section 6.6. The provisions of this Section 6.6 are intended to be for the benefit of each Indemnitee and his or her successors, heirs or representatives. To the fullest extent the Company would have been permitted to do so under applicable Law, Parent shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnitee in enforcing the indemnity and other obligations provided in this Section 6.6.
(e) The rights of each Indemnitee under this Section 6.6 shall be in addition to any rights such Person may have under the Charter or Bylaws (or equivalent organizational or governing documents of any of the Company’s Subsidiaries), certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation, under any applicable Law or under any agreement of any Indemnitee with the Company or any of its Subsidiaries.
(f) Notwithstanding any other provision of this Agreement, this Section 6.6 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Corporation and its Subsidiaries, and shall be enforceable by the Indemnitees and their successors, heirs or representatives. In the event that Parent or the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any personPerson, then, and in each such case, Parent shall ensure that proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as applicable, shall assume succeed to the obligations set forth in this Section 5.
(e) Purchaser shall 6.6 and use all its reasonable best efforts to cause ensure that a Person no less financially viable than the Company to perform all Surviving Corporation (in the event the Effective Time occurs) remains responsible for the obligations of its obligations such party under this Section 56.6.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Bally Technologies, Inc.), Merger Agreement (SHFL Entertainment Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on of six (6) years from and after the earlier of (i) Effective Time, Parent shall, and shall cause the sixth anniversary Surviving Corporation to, to the fullest extent permissible under applicable provisions of the Effective Time DGCL, indemnify, defend and (ii) the Liquidation Datehold harmless all past and present directors, the By-laws officers and employees of the Company shall contain provisions no less favorable with respect or its Subsidiaries and all fiduciaries under any of the Plans (the “Indemnified Persons”) to the same extent such persons are indemnified as of the date of this Agreement by the Company or its Subsidiaries pursuant to applicable Law, the Company Charter, the Company Bylaws, the Subsidiaries Governance Documents and the indemnification or agreements, if any, in existence on the liability date of directors than are this Agreement and set forth in Article VII, Section 7.2 Schedule 5.16(a) of the By-laws Company Disclosure Schedule (collectively, the “Indemnification Agreements”) for acts or omissions in their capacity as directors, officers or employees of the Company, and such provisions shall not be amended, repealed Company or otherwise modified in any manner that would affect adversely Subsidiary or as fiduciaries under any of the rights thereunder of individuals who Plans occurring at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company Effective Time. Parent shall, to and shall cause the fullest extent permitted under applicable LawSurviving Corporation to, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and advance expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities legal fees and settlement amounts paid expenses) incurred in connection with the defense of any claim, action, suit, proceeding or investigation (whether arising before or after with respect to the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining matters subject to any action or omission occurring before or after indemnification pursuant to this Section 5.16(a) in accordance with the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) procedures set forth in the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified PartiesCharter, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in Bylaws, the defense of any such matterSubsidiaries Governance Documents and the Indemnification Agreements; provided, however, that the Indemnified Person to whom expenses are advanced undertakes to repay such advanced expenses to the Surviving Corporation if it is ultimately determined that such Indemnified Person is not entitled to such reimbursement obligation pursuant to this Section 5.16(a).
(b) For six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain for the benefit of the Indemnified Persons, as of the date of this Agreement and as of the Effective Time, who are covered by the directors’ and officers’ liability insurance policy maintained by the Company (the “Insured Persons”), an insurance and indemnification policy that provides coverage for actions or omissions of such Indemnified Persons prior to the Effective Time in their capacities as such (the “D&O Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the Company’s existing insurance policy (true and complete copies of which have been previously provided to Parent) (“Equivalent Coverage”) with the Company’s current provider of such insurance or, if substantially equivalent insurance coverage is unavailable from such provider, the best available coverage from a carrier with the same or better credit rating (a “Comparable Carrier”); provided, however, that, in satisfying its obligation under this Section 5.16(b), Parent and the Surviving Corporation shall not be liable required to pay an annual premium for any settlement effected without its written consent the D&O Insurance in excess of two hundred fifty percent (250%) (the “Maximum Amount”) of the last annual premium paid by the Company with respect to such existing policy prior to the date of this Agreement. Notwithstanding the foregoing, the Company may, after prior consultation with Parent, purchase six (6) year “tail” prepaid policies prior to the Effective Time for the benefit of the Insured Persons, which consent policies are obtained from a Comparable Carrier and provide such Insured Persons with Equivalent Coverage; provided, that the amount paid by the Company with respect to such prepaid policies shall not be unreasonably withheld)in excess of the Maximum Amount of the per annum premium rate paid by the Company as of the date hereof for its existing insurance policy. If such prepaid policies have been obtained prior to the Effective Time, the provisions of this Section 5.16(b) shall be deemed to have been satisfied and Parent shall, and shall cause the Surviving Corporation to, maintain such policies in full force and effect and continue to honor the obligations thereunder.
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company If Parent or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent shall assume all of the obligations set forth in this Section 55.16.
(ed) Purchaser shall use all reasonable efforts to cause the Company to perform all The rights of its obligations any Indemnified Parties under this Section 5.
(f) This Section 5 is intended for 5.16 shall be in addition to any rights such Indemnified Parties may have under the benefit certificate of incorporation or bylaws of the Surviving Corporation or any of its Subsidiaries, or under any applicable Contracts or Laws, and Parent shall, and shall cause the Surviving Corporation to, honor and perform under all Indemnification Agreements entered into by the Company or any of its Subsidiaries. The Indemnified Parties to whom this Section 5.16 applies shall be third party beneficiaries of this Section 5.16, and this Section 5.16 shall be enforceable by such Indemnified Parties and their respective heirssuccessors, executors heirs and personal legal representatives and shall be enforceable by them as third party beneficiaries hereofbinding on all successors and assigns of Parent and the Surviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (North American Galvanizing & Coatings Inc), Merger Agreement (Azz Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on six years after the earlier of Effective Time Anthem shall, and shall cause the Surviving Entity to, (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each the present and former directordirectors, officer, fiduciary officers and agent employees of Cigna and its Subsidiaries (the Company and each of its subsidiaries (collectively, the "“Indemnified Parties"Persons”) against all for any costs and expenses (including attorneys' fees)expenses, judgments, fines, losses, claims, damages, damages or liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding suit or investigation (whether arising before or after the date hereof)proceeding, whether civil, criminal, administrative or investigative, arising out by reason of the fact that such Indemnified Person is or pertaining was an officer, director or employee of Cigna or its Subsidiaries in respect of acts or omissions occurring at or prior to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time (including those related to this Agreement and (ii) the Liquidation Datetransactions contemplated hereby), if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be advance expenses in respect thereof (provided, that an Indemnified Person shall repay Anthem or the continuing Surviving Entity for any expenses incurred by Anthem or surviving corporation or entity the Surviving Entity in connection with the indemnification of such consolidation or merger or (ii) transfers all or substantially all Indemnified Person pursuant to this Section 5.6 if and when a court of its properties and assets to any person, thencompetent jurisdiction shall ultimately determine, and in each such casedetermination shall have become final, proper provision shall be made so that such Indemnified Person did not meet the successors and assigns standard of conduct necessary for indemnification by Anthem or the Company shall assume the obligations Surviving Entity as set forth in this Section 5.
Cigna’s certificate of incorporation, bylaws or indemnification agreements, if any, in existence on the date hereof (e) Purchaser shall use all reasonable efforts or the corresponding organizational documents of any Subsidiary of Cigna, as applicable)), in each case to cause the Company same extent such Persons are indemnified or have the right to perform all advancement of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit expenses as of the Indemnified Parties date hereof by Cigna pursuant to Cigna’s certificate of incorporation, bylaws and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.indemnification agreements,
Appears in 2 contracts
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) Time, Parent shall cause the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior Surviving Corporation to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest greatest extent permitted under applicable Law, by Law (a) to indemnify and hold harmless each present and former directorharmless, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including attorneys' attorney’s fees), judgments, fines, losses, claims, damages, damages or liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out and provide advancement of expenses (without requiring a preliminary determination as to the ultimate entitlement to indemnification) to, all past and present directors and officers of the Company (in all of their capacities) (the “Indemnified Persons”) to the same extent such persons are indemnified or pertaining have the right to any action or omission occurring before or after advancement of expenses as of the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) this Agreement by the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory pursuant to the Company’s Constituent Documents and indemnification agreements, promptly after statements therefor are received if any, in existence on the date hereof with any Indemnified Persons and (iib) to honor the Company shall cooperate provisions regarding elimination of liability of directors, indemnification of officers and directors and advancement of expenses contained in the defense of any such matter; provided, however, that Company’s Constituent Documents and indemnification agreements immediately prior to the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)Effective Time.
(cb) The Company From and after the Effective Time, Parent shall cause the Surviving Corporation to maintain until the earlier for a period of six (i6) the sixth anniversary of years after the Effective Time and (ii) the Liquidation Date, if available, the current policies of directors' ’ and officers' ’ liability insurance policies and fiduciary liability insurance (“D & O Insurance”) maintained by the Company (Company; provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are are, individually and in the aggregate, at least as protective and 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, further, that in no event shall the Surviving Corporation be required to expend in any one year more than 300% of the current annual premium expended by the Company and the Company Subsidiaries to maintain or procure such D & O Insurance immediately prior to the Effective Time (such 300% amount, the “Maximum Annual Premium”); provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. Alternatively, prior to the Effective Time, either Parent or, if Parent does not do so prior to three (3) Business Days prior to the Closing, the Company may purchase a six-year prepaid “tail” policy containing terms and conditions which are, individually and in the aggregate, at least as protective and no less favorableadvantageous to the insured than the D & O Insurance maintained by the Company 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 any policy require payment of aggregate premiums for such insurance in excess of the aggregate Maximum Annual Premium for such six-year period. If such prepaid “tail” policy has been obtained by the Company, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by it and the Surviving Corporation.
(dc) In The obligations of the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.8 applies without the continuing or surviving corporation or entity consent of such consolidation or merger or affected indemnitee (ii) transfers all or substantially all of its properties and assets it being expressly agreed that the indemnitees to any person, then, and in each such case, proper provision whom this Section 6.8 applies shall be made so that the successors and assigns third-party beneficiaries of the Company shall assume the obligations set forth in this Section 56.8).
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Terra Industries Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation and By-Laws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 the Certificate of the Incorporation and By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, fiduciaries officers or agents employees of the Company, unless such modification shall be required by Law.
(b) The Company shall, Parent shall use its reasonable best efforts to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid cause to be maintained in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable effect for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of six years from the Effective Time and (ii) the Liquidation Date, if available, the current policies of the directors' and officers' liability insurance policies maintained by the Company (provided that the Company Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorableadvantageous) with respect to matters occurring prior to the Effective Time to the extent such insurance is reasonably available.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") (but only to the extent such Costs are not otherwise covered by insurance and paid) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (collectively, "Claims"), arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance expenses as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Any Indemnified Party wishing to claim indemnification under Section 6.7(c), upon learning of any such Claim, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party if such failure does not materially prejudice Parent. In the event of any such Claim (whether arising before or after the Company or any of its successors or assigns Effective Time), (i) consolidates with Parent or merges into any other person and the Surviving Corporation shall not be have the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets right to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts defense thereof with counsel reasonably acceptable to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirsParent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, executors except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues that raise conflicts of interest between Parent or the Surviving Corporation and personal representatives the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent shall be enforceable obligated pursuant to this paragraph (d) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld; and provided, further, that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by them as third party beneficiaries hereofapplicable law.
Appears in 2 contracts
Samples: Merger Agreement (Mercantile Stores Co Inc), Merger Agreement (Dillard Department Stores Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to and from and after the fullest extent permitted under applicable LawEffective Time, the Surviving Corporation shall, indemnify and hold harmless harmless, each present and former director, officer, fiduciary and agent officer or employee of the Company and each or any of its subsidiaries Subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and settlement amounts paid in connection settlement of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and wherever asserted, brought or filed, (x) arising out of or pertaining to the Transactions or (y) otherwise with respect to any acts or omissions or alleged acts or omissions occurring at or prior to the Effective Time to the same extent as such persons are entitled to indemnification as of the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of any counsel selected retained by the Indemnified Parties, which counsel shall Parties for any period after the Effective Time must be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and (ii) the Company shall Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). The Indemnified Parties as a group may retain only one law firm to represent them with respect to any single action 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. The indemnity agreements of the Surviving Corporation in this Section 6.06 shall extend, on the same terms to, and shall inure to the benefit of and shall be enforceable by, each Person or entity who controls, or in the past controlled, any present or former director, officer or employee of the Company or any of its Subsidiaries.
(cb) The Company shall maintain until Not later than 30 days after the earlier of (i) the sixth anniversary consummation of the Effective Time and (ii) the Liquidation Date, if availableOffer, the current Surviving Corporation shall procure directors' and officers' liability insurance policies maintained (the "New Insurance") covering for a period of six years after the Effective Time those Persons who are currently covered by the Company Company's directors' and officers' liability insurance policies (the "Current Insurance") and providing coverage (including but not limited to amounts of coverage, amounts of deductibles, employment practices liability and other terms) that are no less favorable than the terms (exclusive of year 2000 coverage) contained in the Current Insurance. The Surviving Corporation will maintain the New Insurance continuously in effect for such six years period and will not cancel the Current Insurance unless and until the New Insurance has been procured. If the New Insurance is provided that under any insurance policies other than a "run-off" of the Company may substitute therefor Company's existing insurance policies, such new policies of at least shall be in form and substance reasonably satisfactory to the same coverage containing terms and conditions which are not less favorable)Continuing Directors.
(dc) In This Section 6.06 shall survive the event consummation of the Company or any of its successors or assigns (i) consolidates with or merges into any other person Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personIndemnified Parties, then, and in each such case, proper provision shall be made so that the binding on all successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives Surviving Corporation and shall be enforceable by them as third party beneficiaries hereofthe Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (HSC Acquisition Corp), Merger Agreement (Hills Stores Co /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on From and after the earlier of Effective Time the Parent agrees that it will (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former directorharmless, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including attorneys' attorney's fees), judgments, fines, losses, claims, damages, claims damages or liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out and provide advancement of expenses to, all past and present directors, officers and employees of the Company and its Subsidiaries (in all of their capacities) (a) to the same extent such persons are indemnified or pertaining have the right to any action or omission occurring before or after advancement of expenses as of the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) this Agreement by the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory pursuant to the Company's certificate of incorporation, promptly after statements therefor are received bylaws and indemnification agreements, if any, in existence on the date hereof with any directors, officers and employees of the Company and its Subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in each case, for acts or omissions at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of six years after the Effective Time, the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the certificate of incorporation and bylaws of the Company shall cooperate in the defense and (iii) cause to be maintained for a period of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation Date, if available, the current policies of directors' and officers' liability insurance policies and fiduciary liability insurance maintained by the Company (provided that the Company Parent (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are 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). The obligations of Parent under this Section 5.7 shall not less favorablebe terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 5.7 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7).
(db) In the event the Company If Parent or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any personindividual, corporation or other entity, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent shall assume all of the obligations set forth in this Section 55.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Pharmacia Corp /De/), Merger Agreement (Pfizer Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation and By-Laws of the Effective Time Surviving Corporation shall contain the provisions regarding liability of directors and (ii) indemnification of directors and officers that are set forth, as of the Liquidation Datedate of this Agreement, in the Certificate of Incorporation and the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VIILaws, Section 7.2 of the By-laws respectively, of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The For a period of six years after the Effective Time, the Surviving Corporation shall use all reasonable efforts to cause to be maintained in effect policies of directors' and officers' liability insurance with coverage in amount and scope at least as favorable as the Company's existing policies with respect to claims arising from facts or events that occurred prior to the Effective Time; provided, however, that during such period the Surviving Corporation shall in no event be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 200 percent of current premiums paid by the Company for such insurance, which current premium amount is set forth in Section 6.05(b) of the Company Disclosure Schedule.
(c) This Section 6.05 is intended to be for the benefit of, and shall be enforceable by, the indemnified parties, their heirs and personal representatives and shall be binding on the Surviving Corporation and its respective successors and assigns.
(d) From and after the Effective Time, the Surviving Corporation agrees that it shall, to and New Holland shall cause the fullest extent permitted under applicable LawSurviving Corporation to, indemnify and hold harmless each present and former director, officer, fiduciary director and agent officer of the Company and each Company, determined as of its subsidiaries the Effective Time (collectively, the "Indemnified Parties") ), against all any costs and or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and settlement amounts paid "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Delaware law and under the Company's charter documents (as in effect on the date hereof) to indemnify such Indemnified Parties (and the Surviving Corporation shall, and New Holland shall cause the Surviving Corporation to, advance expenses as incurred to the fullest extent permitted under applicable Law; provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification); and provided, further, that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Delaware law and the Company charter documents shall be made by independent counsel selected by the Surviving Corporation.
(e) To the extent paragraph (d) shall not serve to indemnify and hold harmless an Indemnified Party, for a period of six years after the date hereof, the Surviving Corporation shall, and New Holland shall cause the Surviving Corporation to, subject to the terms set forth herein, indemnify and hold harmless, to the fullest extent permitted under applicable Law (and the Surviving Corporation shall, and New Holland shall cause the Surviving Corporation to advance expenses as incurred to the fullest extent permitted under applicable Law; provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification), each Indemnified Party against any Costs incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the transactions contemplated by this Agreement; provided, however, that the Surviving Corporation shall not be required to indemnify any Indemnified Party pursuant hereto if it shall reasonably determine that the Indemnified Party acted in bad faith and not in a manner such Indemnified Party believed to be in or not opposed to the best interests of the Company.
(f) Any Indemnified Party wishing to claim indemnification under paragraphs (d) or (e) of this Section 6.05, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify New Holland thereof, but the failure to so notify shall not relieve New Holland or Surviving Corporation of any liability it may have to such Indemnified Party, except to the extent that such failure materially prejudices the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between New Holland or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Corporation shall, and New Holland shall cause the Surviving Corporation to, pay the all reasonable fees and expenses of such counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Parties promptly after as statements therefor are received received; provided, however, that New Holland and the Surviving Corporation shall be obligated pursuant to this paragraph (f) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Company shall Indemnified Parties will cooperate in the defense of any such matter; provided, however, that matter and (iii) neither New Holland nor the Company Surviving Corporation shall not be liable for any settlement effected without its the prior written consent of Fiat (which consent shall not be unreasonably withheld); and provided, further, that neither New Holland nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. If such indemnity is not available with respect to any Indemnified Party, then the Surviving Corporation shall, and New Holland shall cause the Surviving Corporation to, and the Indemnified Party shall, each contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(cg) The Company shall maintain until If the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of or such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets or outstanding voting securities to any personindividual, thencorporation or other entity, then and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Surviving Corporation shall assume all of the obligations set forth in this Section 56.05.
(eh) Purchaser shall use all reasonable efforts To the extent that New Holland or Merger Sub fails to make or cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit be made any of the Indemnified Parties and their respective heirspayments required by Section 6.05, executors and personal representatives and Fiat shall be enforceable by them as third party beneficiaries hereofmake such payments.
Appears in 2 contracts
Samples: Merger Agreement (Case Corp), Merger Agreement (Case Credit Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary of the Effective Time Incorporation and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation, and the certificate of incorporation and by-laws or comparable organizational documents of each subsidiary of the Surviving Corporation, shall contain provisions no less favorable with respect to indemnification or the liability of directors that are no less favorable than are those set forth in Article VII, Section 7.2 the Restated Certificate of the Incorporation and Restated By-laws of the Company, or the certificate of incorporation and by-laws or comparable organizational documents of such subsidiary of the Surviving Corporation, as the case may be, in each case on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at the Effective Time were directors or officers of the Company, or any subsidiary of the Company, in respect of actions or omissions occurring at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the CompanyEffective Time, unless such modification shall be required by Law.
(b) The Company From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable Delaware Law, indemnify and hold harmless each present and former director, officer, fiduciary director and agent officer of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative based on the fact that such person is or investigative, was a director or officer of the Company or any subsidiary of the Company and arising out of or pertaining to any action or omission occurring at or before the Effective Time (and shall pay any expenses in advance of the final disposition of such action or after proceeding to each Indemnified Party to the date hereoffullest extent permitted under Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such advances if required under Delaware Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and (ii) the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided further that the Surviving Corporation shall not be obligated pursuant to this Section 6.04(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action except to the extent, as determined by counsel to the Indemnified Parties, that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation.
(c) The Company Surviving Corporation shall use its reasonable best efforts to maintain until the earlier in effect for a period of (i) the sixth anniversary of six years from and after the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy on terms comparable to such existing insurance coverage; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.04(c) more than an amount per year equal to 250% of current annual premiums paid by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable)for such insurance.
(d) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation or, at Parent's option, Parent, shall assume the obligations set forth in this Section 56.04.
(e) Purchaser shall use From and after the Effective Time, Parent irrevocably and unconditionally guarantees the prompt payment and performance of all reasonable efforts obligations of the Surviving Corporation pursuant to cause this Section 6.04, when and as due by the Company to perform all of Surviving Corporation. Parent hereby acknowledges that its obligations under this Section 56.04(e) constitute a guaranty of payment of amounts that are payable by the Surviving Corporation under this Section 6.04(e) and not merely a guaranty of collectability, and Parent hereby waives any requirement that any Indemnified Party exhaust any right to take any action against the Surviving Corporation or any other person prior to or contemporaneously with proceeding to exercise any right against Parent hereunder.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Viacom Inc), Merger Agreement (Viacom Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 Eighth of the By-laws Certificate of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of ten years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of ten years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, further, that neither the Company nor the surviving Corporation shall be obligated pursuant to this Section 5.03(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided, further, that, in the event that any claim for indemnification is asserted or made within such ten-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use its best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable).
(d) In with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company or any of its successors or assigns Surviving Corporation be required to expend pursuant to this Section 5.03(c): (i) consolidates with or merges into any other person for period beginning at Effective Time and shall not ending three years thereafter, more than an amount per year equal to 300% of current annual premiums (the "Current Annual Premiums") paid by the Company for such insurance (which premiums the Company represents and warrants to be approximately $63,000 in the continuing or surviving corporation or entity of such consolidation or merger or aggregate), and (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that for the successors and assigns period beginning on the third anniversary of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts Effective Time and ending three years thereafter, more than an amount per year equal to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit 200% of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofCurrent Annual Premiums.
Appears in 2 contracts
Samples: Merger Agreement (Concord Merger Corp), Merger Agreement (Concord Merger Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the earlier Company now existing in favor of (i) each Person who is now, or has been at any time prior to the sixth anniversary of date hereof or who becomes prior to the Effective Time and (ii) the Liquidation Date, the By-laws Closing an officer or director of the Company and its Subsidiaries (each an “D&O Indemnified Party”) as provided in the Company Charter Documents, in each case as in effect on the date of this Agreement, shall contain provisions no less favorable survive the Closing and shall remain in full force and effect in accordance with respect to indemnification their terms, and, in the event that any proceeding is pending or asserted or any claim made during such period, until the liability final disposition of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed proceeding or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Lawclaim.
(b) The Company shall, shall purchase “tail” coverage with respect to the fullest extent permitted under applicable LawCompany’s directors and officers policies in effect prior to the Closing in an amount of $15,000,000 of coverage (the “D&O Coverage”). Buyer, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid Majority Shareholder hereby acknowledge that the insurance quote obtained by the Company in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).D&O Coverage is attached hereto is as Exhibit D.
(c) The Company shall maintain until the earlier obligations of (i) the sixth anniversary of the Effective Time Buyer and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company under this Section 6.08 shall survive the Closing and shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party to whom this Section 6.08 applies without the consent of such affected Indemnified Party (provided it being expressly agreed that the Company D&O Indemnified Parties to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08, each of whom may substitute therefor policies enforce the provisions of at least the same coverage containing terms and conditions which are not less favorablethis Section 6.08).
(d) In the event that, after the Closing, Buyer, the Company or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Buyer or Company, as the Company case may be, shall assume all of the obligations set forth in this Section 56.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Acquisition Agreement (Kennedy Cabot Acquisition, LLC), Acquisition Agreement (Siebert Financial Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) the Liquidation DateTime, the By-laws of Buyer shall cause the Company shall contain provisions no less favorable with respect Surviving Corporation and its Subsidiaries to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, honor all existing obligations to indemnify and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shallhold harmless, to the fullest extent permitted under applicable Applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary officer and agent employee of the Company and each or any of its subsidiaries (collectively, the "Indemnified Parties") Subsidiaries against all any costs and or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages, damages or liabilities and settlement amounts paid incurred in connection with any charge claim, action, suit, proceeding audit, assessment, arbitration, inquiry or investigation (whether arising before or after the date hereof)proceeding, in each case, whether civil, criminal, administrative or investigative, arising out of or pertaining to acts or omissions by them in their capacity as such, or taken at the request of the Company or any action or omission occurring before or after of its Subsidiaries, at any time prior to the date hereofClosing Date (a “D&O Proceeding”). In Without limiting the event foregoing, the Buyer shall cause the Company and each of any such claim, action, suit, proceeding or investigation, its Subsidiaries for a period of not less than six (6) years from the Effective Time (i) to maintain provisions in its certificate of incorporation, bylaws or other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Company’s and its Subsidiaries’ former and current officers, directors and employees that are no less favorable to those Persons than the provisions of the certificate of incorporation, bylaws or other organizational documents of the Company shall pay or such Subsidiary, as applicable, in each case, as of the reasonable fees and expenses date of counsel selected by the Indemnified Partiesthis Agreement, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) not to amend, repeal or otherwise modify such provisions in any material respect that would adversely affect the Company rights of those Persons thereunder, in each case, except as required by Applicable Law.
(b) For a period of six (6) years from the Effective Time, the Buyer shall cooperate cause the Surviving Corporation and its Subsidiaries to maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the Company’s or any of its Subsidiaries’ directors’ and officers’ liability insurance policies on terms not less favorable in the defense aggregate than the terms of any such matterinsurance coverage as in effect as of the date hereof; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary Buyer or the Surviving Corporation may cause coverage to be extended under the current directors’ and officers’ liability insurance policies by obtaining at or prior to the Closing a prepaid, non-cancelable six-year “tail” policy containing terms not less favorable than the terms of such current insurance coverage with respect to matters existing or occurring at or prior to the Effective Time and (ii) if any D&O Proceeding claim occurs within such six-year period, any insurance required to be maintained under this Section 4.16 shall be continued in respect of such D&O Proceeding until the Liquidation Datefinal disposition thereof.
(c) The rights to indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which any Person entitled to indemnification under this Section 4.16 (a “D&O Indemnified Person”) may at any time be entitled. No right or remedy herein conferred by this Agreement is intended to be exclusive of any other right or remedy, if availableand every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Applicable Law or in equity or otherwise. The assertion of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion of any other right or remedy. The Buyer hereby acknowledges that the D&O Indemnified Persons have or may, in the future, have certain rights to indemnification, advancement of expenses or insurance provided by other Persons (collectively, “Other D&O Indemnitors”). The Buyer hereby agrees that, with respect to any advancement or indemnification obligation owed, at any time, to an D&O Indemnified Person by the Surviving Corporation or any of its Subsidiaries or any Other D&O Indemnitor, whether pursuant to any certificate of incorporation, bylaws, partnership agreement, operating agreement, indemnification agreement or other document or agreement or pursuant to this Section 4.16 (any of the foregoing, an “D&O Indemnification Obligation”), and, after the Effective Time, the current directors' Buyer shall cause the Surviving Corporation and officers' liability insurance policies maintained by the Company its Subsidiaries to (provided that the Company may substitute therefor policies of i) jointly and severally, and at least the same coverage containing terms and conditions which are not less favorable).all times, be the
(d) Notwithstanding anything contained in this Agreement to the contrary, this Section 4.16 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of the Buyer and the Surviving Corporation. In the event that the Company Buyer or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Buyer or the Surviving Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 54.16.
(e) Purchaser shall use all reasonable efforts Except for the provisions contained in this Agreement and the Transaction Documents (including but not limited to cause the Company to perform all Stockholder Consent), effective as of the Closing, the Buyer, for itself and on behalf of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit Affiliates, and each of the Indemnified Parties its and their respective heirssuccessors, heirs and executors (each, a “D&O Releasor”) hereby irrevocably, knowingly and personal representatives voluntarily releases, discharges and shall be enforceable by them as third party beneficiaries hereof.forever waives and relinquishes, other than in the case of fraud or intentional breach under this Agreement or any Transaction Document, all claims, demands, Losses, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any D&O Releasor has, may have or may assert now or in the future, against any director, officer, manager or employee of the Company or any of its Subsidiaries who resigns at the Closing, arising out of, based upon or resulting from any action,
Appears in 2 contracts
Samples: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of After the Effective Time IBC and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company Surviving Corporation shall, to the fullest extent permitted under applicable Lawjointly and severally, indemnify and hold harmless each present and (as of the Effective Time) or former director, officer, fiduciary director or employee of LFC and agent of the Company and each of its subsidiaries LFC Subsidiaries (collectively, the "“Indemnified Parties") ”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities ’ fees and settlement amounts paid expenses) incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by fact that the Indemnified PartiesParty is or was an officer, which counsel shall be reasonably satisfactory director or employee of LFC or any of the LFC Subsidiaries or (ii) matters existing or occurring at or prior to the CompanyEffective Time (including this Agreement and the transactions and actions contemplated hereby), promptly whether asserted or claimed prior to, at or after statements therefor the Effective Time, solely to the same extent required under any indemnification provisions included in LFC’s or LFC Subsidiary’s, as the case may be, constituent or organizational documents as in effect on the date of this Agreement; provided that no Indemnified Party may settle any such claim without the prior approval of IBC (which approval shall not be unreasonably withheld or delayed).
(b) The Surviving Corporation shall (i) cause to be maintained in effect in its articles of incorporation and by-laws for a period of six years after the Effective Time, provisions regarding elimination of liability of directors and indemnification of, and advancement of expenses to, officers, directors and employees that are received at least as favorable to the Indemnified Parties as those contained in the articles of incorporation and by-laws of LFC as in effect on the date hereof and (ii) the Company shall cooperate in the defense for a period of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation DateTime, if available, shall use its reasonable best efforts to maintain the current policies of directors' ’ and officers' ’ liability insurance policies and fiduciary liability insurance maintained by the Company LFC (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are 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 Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by LFC for such insurance (which premiums LFC represents to be $185,000 per year in the aggregate); and, provided, further, that if the Surviving Corporation is unable to obtain the insurance required by this Section 6.7 or the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not less favorable)exceeding such amount.
(c) Notwithstanding anything herein to the contrary, if any claim, action, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, proceeding or investigation.
(d) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and or assigns of the Company Surviving Corporation shall assume succeed to the obligations set forth in Section 6.5 and this Section 56.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (International Bancshares Corp), Merger Agreement (Local Financial Corp /Nv)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Parent and Merger Sub will cause the earlier Surviving Corporation’s articles of (i) the sixth anniversary of the Effective Time organization and (ii) the Liquidation Date, the By-laws of the Company shall bylaws to contain provisions no less favorable with respect to indemnification or indemnification, advancement of expenses, and exculpation from liabilities of present and former directors, officers, and employees of the liability of directors Company than are set forth currently provided in Article VIIthe Company Organizational Documents, Section 7.2 of the By-laws of the Company, and such which provisions shall may not be amended, repealed repealed, or otherwise modified in any manner that would adversely affect adversely the rights thereunder of any such individuals who at or prior to until the time later of (i) the expiration of the consummation statute of limitations applicable to such matters and (ii) six (6) years from the Offer were directorsEffective Time, officersand in the event that any Action is pending or asserted or any claim made during such period, fiduciaries until the disposition of any such Action or agents of the Companyclaim, unless such modification shall be amendment, modification, or repeal is required by applicable Law, in which case Parent will, and will cause the Surviving Corporation to, make such changes to the articles of organization and the bylaws as to have the least adverse effect on the rights of the individuals referenced in this Section 5.7.
(b) The Without limiting any additional rights that any Person may have under any agreement or Company shallPlan, from and after the Effective Time, and until the later of (i) the expiration of the statute of limitations applicable to such matters and (ii) six (6) years from the fullest extent permitted under applicable LawEffective Time, Parent and the Surviving Corporation will, jointly and severally, indemnify and hold harmless each present and (as of the Effective Time) or former director, officer, fiduciary and agent director or officer of the Company and each of its subsidiaries (collectivelyeach, the "together with such Person’s heirs, executors, administrators, or Affiliates, an “Indemnified Parties") Party”), against all costs obligations to pay a judgment, settlement, or penalty and reasonable and documented out-of-pocket expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)Action, whether civil, criminal, administrative administrative, arbitrative, or investigative, and whether formal or informal, arising out of or pertaining to any action or omission, including any action or omission occurring before in connection with the fact that the Indemnified Party is or was an officer, director, employee, Affiliate, fiduciary, or agent of the Company or its Subsidiaries, or of another entity if such service was at the request of the Company, whether asserted or claimed prior to, at, or after the date hereofEffective Time, to the fullest extent permitted under applicable Law. In the event of any such claimAction, action, suit, proceeding or investigation, (i) Parent and the Company shall pay the Surviving Corporation will advance to each Indemnified Party reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate incurred in the defense of the Action, including reasonable attorneys’ fees (provided that any such matter; Person to whom expenses are advanced will have provided, howeverto the extent required by the MBCA, an undertaking to repay such advances if it is finally determined that the Company shall such Person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldentitled to indemnification).
(c) The Notwithstanding anything to the contrary in this Agreement, the Company shall maintain until may purchase prior to the earlier of Effective Time, and if the Company does not purchase prior to the Effective Time, the Surviving Corporation will purchase at or after the Effective Time, a tail policy under the current directors’ and officers’ liability insurance policies maintained at such time by the Company, which tail policy (i) will be effective for a period from the sixth anniversary of Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective to such directors and officers as the Liquidation Datecoverage provided by such existing policies; provided, if availablethat, the current directors' annual premium for such tail policy may not be in excess of three hundred percent (300%) of the last annual premium paid prior to the Effective Time (the “Maximum Amount”). Parent will cause such policy to be maintained in full force and officers' liability effect for their full term, and cause all obligations thereunder to be honored by the Surviving Corporation; provided, that neither Parent nor the Surviving Corporation shall be required to pay an aggregate premium for such insurance policies maintained by in excess of the Company (provided Maximum Amount; provided, further, that if the Company may substitute therefor policies aggregate premium of at least such insurance coverage exceeds such amount, the same Surviving Corporation shall be obligated to obtain the maximum amount of coverage containing terms and conditions which are not less favorable)available for the Maximum Amount.
(d) In Without limiting any of the event rights or obligations under this Section 5.7, from and after the Effective Time, the Surviving Corporation will keep in full force and effect, and will comply with the terms and conditions of, any agreement in effect as of the date of this Agreement and made available to Parent between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party and Parent hereby guarantees the obligations of the Surviving Corporation pursuant to such agreements.
(e) This Section 5.7 will survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Person or entity referred to in this Section 5.7. The indemnification and advancement provided for in this Section 5.7 is not exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, Contract, or otherwise. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of resulting from such consolidation or merger or (ii) transfers all or substantially all a majority of its properties and assets to any personPerson, then, and in each such case, Parent will make proper provision shall be made so provisions such that the successors and assigns of the Company shall Surviving Corporation assume the applicable obligations set forth in this Section 55.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VI of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified in any manner that would materially adversely affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company CRI shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability ("D&O") insurance policies maintained that serves to reimburse persons currently covered by the Company Company's D&O insurance in full force and effect for the continued benefit of such persons for a continuous period of not less than two years from the Effective Time on terms that are not materially different from the Company's D&O insurance currently in effect (provided that the Company Surviving Corporation may substitute -33- therefor policies of at least the same coverage containing terms and conditions which that are not less favorable)) with respect to matters occurring prior to the Effective Time.
(dc) In the event the Company Company, CRI, or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Company, CRI or the Surviving Corporation, as the case may be, or at CRI's option, CRI, shall assume the obligations set forth in this Section 57.07.
(d) Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 7.07 shall survive the consummation of the Merger.
(e) Purchaser shall use all reasonable efforts The parties acknowledge that the provisions of this Section 7.07 are in addition to cause and not in lieu of the indemnification obligations of the Company to perform all of its obligations under this set forth in the agreements listed in Section 5.
(f) This Section 5 is intended for the benefit 4.23 of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofDisclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
Directors’ and Officers’ Indemnification and Insurance. 7.7.1 BHB shall maintain in effect for six (a6) For a period ending on the earlier of (i) the sixth anniversary of years following the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' ’ and officers' ’ liability insurance policies maintained by the Company Rome (provided provided, that the Company BHB may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall BHB be required to expend pursuant to this Section 7.7.1 more than an amount equal to 175% of the current annual amount expended by Rome with respect to such insurance, as set forth in Rome Disclosure Schedule 7.7.1 (the “Maximum Amount”); provided, further, that if the amount of the aggregate premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, BHB shall maintain the most advantageous policies of directors and officers insurance obtainable for an annual premium equal to the Maximum Amount. In connection with the foregoing, Rome agrees in order for BHB to fulfill its agreement to provide directors and officers liability insurance policies for six (6) years to provide such insurer or substitute insurer with such representations as such insurer may request with respect to the reporting of any prior claims.
7.7.2 In addition to Section 7.7.1, BHB shall, to the fullest extent permitted under Delaware law (to the extent not prohibited by federal law), 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 Rome or any Rome Subsidiary (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorneys’ fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of BHB, which consent shall not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of the fact that such Person is or was a director, officer or employee of Rome or a Rome Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring before the Effective Time (including, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time. Any Indemnified Party wishing to claim indemnification under this Section 7.7.2 upon learning of any Claim, shall notify BHB (but the failure so to notify BHB shall not relieve it from any liability which it may have under this Section 7.7.2, except to the extent such failure materially prejudices BHB). In the event of any such Claim (whether arising before or after the Effective Time) (1) BHB shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption BHB shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if BHB elects not to assume such defense, or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether or not any have yet actually arisen) issues which raise conflicts of interest between BHB and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them, and BHB shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) except to the extent otherwise required due to conflicts of interest, BHB shall be obligated pursuant to this paragraph to pay for only one (1) firm of counsel for all Indemnified Parties unless there is a conflict of interest that necessitates more than one law firm, and (3) BHB shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(d) 7.7.3 In the event the Company that either BHB or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company BHB shall assume the obligations set forth in this Section 57.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all 7.7.4 The obligations of its obligations BHB provided under this Section 5.
(f) This Section 5 is 7.7 are intended for the benefit of to be enforceable against BHB directly by the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofbinding on all respective successors and permitted assigns of BHB.
Appears in 2 contracts
Samples: Merger Agreement (Rome Bancorp Inc), Merger Agreement (Berkshire Hills Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time Time, Parent and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, jointly and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shallseverally, to the fullest extent permitted under applicable Lawlaw, indemnify indemnify, defend and hold harmless harmless, each present and former director, officer, fiduciary and agent officer or employee of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all any costs and or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining with respect to any action acts or omission omissions occurring before at or prior to the Effective Time, to the same extent as provided in the Company's certificate of incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, accurate and complete copies of which contracts and agreements have been provided to the Parent prior to the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, this provision shall not operate to extend the term of any indemnification provided under any applicable contract or agreement. In the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(b) The Surviving Corporation, Parent or the Company (with the prior written consent of Parent) shall purchase a "tail" policy under the Company's existing directors' and officers' insurance policy that (i) has an effective term of six years from the Effective Time, (ii) covers those Persons who are currently covered, or will be covered on or prior to the Effective Time, by the Company's directors' and officers' insurance policies in effect on the date hereof with respect to matters occurring on or prior to the Effective Time and (iii) contains terms and conditions (including without limitation coverage amounts) that are not materially less favorable in the aggregate as the terms and conditions of the Company's directors' and officers' insurance policies in effect on the date hereof; provided, however, Parent, Surviving Corporation or Company (with the prior written consent of the Parent), as the case may be, shall be entitled to reduce the term of coverage, if necessary, to a term of coverage that can be obtained for a premium equal to $1,562,500 plus any unearned premium actually refunded or credited to the Surviving Corporation or Parent with respect to the Company's existing directors' and officers' insurance policies. In the event that Parent or Surviving Corporation obtains insurance hereunder from a carrier or carriers other than the Company's existing carriers, such carrier or carriers shall be reasonably comparable to the Company's existing carriers in all material respects. Notwithstanding the foregoing, the Surviving Corporation or Parent, as the case may be, shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)negative change in such coverage that is attributable to a market change in the types of coverage or levels of coverage generally available for similarly situated insureds.
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Cell Pathways Inc /De), Merger Agreement (Osi Pharmaceuticals Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The certificate of (i) the sixth anniversary formation and limited liability company agreement of the Effective Time Surviving Entity and (ii) the Liquidation Date, the By-laws organizational documents of the Company each of its subsidiaries shall contain provisions no less favorable to the persons covered thereby with respect to exculpation, indemnification or the liability and advancement of directors expenses than are set forth in Article VII, Section 7.2 the certificate of incorporation and bylaws of Edge as of the By-laws date of the Companythis Agreement, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior any time from and after the date of this Agreement and to and including the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of Edge or any of its subsidiaries in respect of actions or omissions occurring at or prior to the CompanyEffective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification shall be is required by Lawlaw.
(b) The Company From and after the Effective Time, the Surviving Entity shall, to the fullest extent permitted under applicable Applicable Law, indemnify and indemnify, hold harmless and advance expenses to each present and former director, officer, employee, fiduciary and agent of the Company Edge and each of its subsidiaries (collectively, the "“Indemnified Parties"”) against all costs and expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, inquiries, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent (including, without limitation, any claim arising out of this Agreement or any of the Transactions), whether occurring before or after the date hereofEffective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the Effective Time, in each case to the fullest extent permitted under Applicable Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Applicable Law, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under Applicable Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay Indemnified Parties may retain counsel (including local counsel) satisfactory to them, the reasonable fees and expenses of counsel selected which shall be paid by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Surviving Entity promptly after statements therefor are received and (ii) the Company Surviving Entity shall cooperate use reasonable best efforts in the vigorous defense of any such matter; provided, however, that the Company Surviving Entity shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Surviving Entity shall not be obligated pursuant to this subsection (b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Entity; and provided, further, that, in the event that any claim for indemnification is asserted or made prior to the Effective Time or within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim. The Surviving Entity shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.4.
(c) The Company From and for a period of six years after the Effective Time, the Surviving Entity shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, in effect the current directors' ’ and officers' ’ liability insurance policies maintained by the Company Edge (provided provided, that the Company Surviving Entity may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which that are no less advantageous to such officers and directors so long as substitution does not less favorable)result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Entity be required to expend pursuant to this Section 5.4(c) more than an amount per year equal to 200% of current annual premiums paid by Edge for such insurance and, in the event the cost of such coverage shall exceed that amount, the Surviving Entity shall purchase as much coverage as possible for such amount.
(d) In the event the Company Surviving Entity or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Entity shall assume the obligations set forth in this Section 55.4.
(e) Purchaser In the event that the Surviving Entity should fail, at any time from and after the Effective Time, to comply with any of the foregoing obligations set forth in this Section 5.4, for any reason, Parent shall use all reasonable efforts to cause the Company be responsible therefor and hereby agrees to perform all such obligations unconditionally without regard to any defense or other basis for nonperformance which the Surviving Entity may have or claim (except as would be prohibited by Applicable Law), it being the intention of this subsection (e) that the officers, directors, employees, fiduciaries and agents of Edge and its subsidiaries shall be fully indemnified and that the provisions of this subsection (e) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations under this Section 5of the Surviving Entity.
(f) This The obligations of Parent and the Surviving Entity under this Section 5 is intended for 5.4 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 5.4 applies without the benefit consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the Indemnified Parties directors, officers, employees, fiduciaries and their respective heirs, executors and personal representatives and agents to whom this Section 5.4 applies shall be enforceable by them as third third-party beneficiaries hereofof this Section 5.4). The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the charter or bylaws of Edge, under Delaware Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Edge Petroleum Corp), Merger Agreement (Chaparral Energy, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the CompanySurviving Corporation shall, and such provisions AIMCO shall not be amendedcause the Surviving Corporation to, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directorsindemnify, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify defend and hold harmless each the present and former director, officer, fiduciary officers and agent directors of the Company and each of its subsidiaries NHP (collectively, the "Indemnified PartiesINDEMNIFIED OFFICERS/DIRECTORS") against all costs and losses, expenses (including attorneys' attorneys fees), judgments, fines, losses, claims, damages, liabilities and settlement or amounts ("LOSSES") that are paid in settlement (provided that such settlement has been approved by AIMCO, such approval not to be unreasonably withheld) of, or otherwise in connection with with, any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofa "CLAIM"), whether civil, criminal, administrative based in whole or investigative, in part on the fact that such person is or was a director or officer of NHP and arising out of actions or pertaining omissions occurring at or prior to any action or omission occurring before or after the Effective Time (including, without limitation, the Transactions), in each case, to the full extent permitted under the DGCL and NHP's certificate of incorporation and bylaws (to the extent permitted by applicable law) as in effect on the date hereofof this Agreement. In The Surviving Corporation shall pay any expenses in advance of the event final disposition of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses Claim to each of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory Officers/Directors to the Company, promptly after statements therefor fullest extent permitted under the DGCL upon receipt from any of the Indemnified Officers/Directors to whom expenses are received and (ii) advanced of any undertaking to repay such advances required under the Company DGCL. The Surviving Corporation shall cooperate in the defense of any such matter; provided.
(b) The Surviving Corporation shall, howeverand AIMCO shall cause the Surviving Corporation to, that keep in effect provisions in its certificate of incorporation and bylaws providing for exculpation of director liability and its indemnification of the Company Indemnified Officers/Directors to the fullest extent permitted under the DGCL, which provisions shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)amended except as required by applicable law or except to make changes permitted by law that would enlarge the right of indemnification of the Indemnified Officers/Directors.
(c) The Company shall maintain until the earlier For a period of (i) the sixth anniversary of three years after the Effective Time and (ii) the Liquidation Date, if availableTime, the Surviving Corporation shall, and AIMCO shall cause the Surviving Corporation to, maintain in effect the current policies of directors' and officers' liability insurance policies maintained by NHP covering persons who are currently covered by NHP's officers' and directors' liability insurance policies with respect to actions or omissions occurring at or prior to the Company (provided Effective Time, a true and correct summary of which is set forth on SCHEDULE 6.18, to the extent that the Company may substitute therefor such policies are available; provided, that policies of at least the same coverage containing terms and conditions which are not no less favorable)advantageous to the insureds may be substituted therefor.
(d) In From and after the event Effective Time, AIMCO agrees to indemnify, defend and hold harmless the Company Indemnified Officers/Directors against all Losses that are paid in settlement (provided that such settlement has been approved by AIMCO, such approval not to be unreasonably withheld) of, or any otherwise in connection with, a Claim based in whole or in part on the fact that such Person is or was a director or officer of its successors NHP and arising out of actions or assigns omissions occurring at or prior to the Effective Time (i) consolidates with or merges into any other person and shall not be including, without limitation, the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personTransactions), then, and in each case to the fullest extent permitted by applicable Law and whether or not the Surviving Corporation is permitted by applicable Law to provide any indemnity with respect to such case, proper provision Losses. AIMCO shall be made so that the successors and assigns pay any expenses in advance of the Company final disposition of any such Claim to each of the Indemnified Officers/Directors to the fullest extent permitted by applicable Law. AIMCO shall assume cooperate in the obligations set forth in this Section 5defense of any such matter.
(e) Purchaser The provisions of this SECTION 6.18 shall use all reasonable efforts survive the consummation of the Merger and expressly are intended to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit each of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofOfficers/Directors.
Appears in 2 contracts
Samples: Merger Agreement (Apartment Investment & Management Co), Merger Agreement (Apartment Investment & Management Co)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on 5.2.1 Except to the earlier of (i) extent required by law, until the sixth fifth anniversary of the Effective Time and (ii) Time, neither Buyer nor the Liquidation DateSurviving Corporation will take any action so as to amend, modify or repeal the By-laws provisions for indemnification of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries employees or agents contained in the certificates or articles of incorporation or bylaws (or other comparable charter documents) of the Company, unless Company or any of its Subsidiaries as of the date of this Agreement in such modification a manner as would adversely affect the rights of any individual who shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former have served as a director, officer, fiduciary and employee or agent of the Company and each or any of its subsidiaries Subsidiaries prior to the Effective Time (collectively, the each an "Indemnified PartiesParty") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) be indemnified by the Company shall pay or its Subsidiaries or the reasonable fees and expenses Surviving Corporation in respect of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory their serving in such capacities prior to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)Effective Time.
(c) The Company shall maintain 5.2.2 Buyer shall, until the earlier of (i) the sixth second anniversary of the Effective Time and (ii) Time, cause the Liquidation DateSurviving Corporation to maintain in effect, if to the extent available, the current policies of directors' and officers' liability insurance policies maintained by the Company and its Subsidiaries as of the date hereof (provided that the Company may substitute therefor or policies of at least the same coverage and amounts containing terms and conditions which that are not no less favorable)advantageous to the insured parties) with respect to claims arising from facts or events that occurred on or prior to the Effective Time.
(d) 5.2.3 In the event the Company or any of its successors or assigns Surviving Corporation (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in Sections 5.2.1 and 5.2.2.
5.2.4 The provisions of this Section 5.
(e) Purchaser shall use all reasonable efforts 5.2 are intended to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended be for the benefit of the Indemnified Parties and their respective heirsof, executors and personal representatives and shall be enforceable by them as third by, each party beneficiaries hereofentitled to insurance coverage under Section 5.2.2 above, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights such party may have under the certificate or articles of incorporation or bylaws of the Surviving Corporation or any of its Subsidiaries, under Minnesota Law or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Hollywood Park Inc/New/), Merger Agreement (Hollywood Park Inc/New/)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VII of the By-laws Certificate of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would materially and adversely affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereofhereof ( a "Claim"), provided, however, that no Indemnified Party shall be entitled to payment of any amount in respect of any Claim arising from willful misconduct, self dealing or the commission of an intentional tort by such Indemnified Person. In the event of any such claim, action, suit, proceeding or investigation, Parent or the Surviving Corporation, as the case may be, shall assume the defense thereof, and neither Parent nor the Surviving Corporation will be liable to such Indemnified Parties for any legal expenses of other counsel incurred subsequent to such assumption by such Indemnified Parties in connection with the defense thereof, provided, that (i) the Company Parent and the Surviving Corporation shall pay have acknowledged in writing that their indemnity obligations hereunder are applicable in respect of the reasonable fees matter in issue unless and expenses until a court of counsel selected competent jurisdiction ultimately determines, and such determination becomes final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by the Indemnified Partieslaw, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) no settlement shall be effected without the Company written consent of an Indemnified Party which does not include a full and unconditional release of such Indemnified Party and (iii) the Indemnified Parties shall cooperate in the defense of any such matter; provided. None of the Company, however, that Parent or the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). None of the Company, Parent nor the Surviving Corporation shall be obligated pursuant to this Section 6.7(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties (who shall in any event be reasonably acceptable to the Parent) in any single action except to the extent that the named parties to any such proceeding include both the Indemnified Party and the Company or Parent, or their respective successors, and the representation of such parties by the same counsel would be proscribed under applicable standards of professional conduct and provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Parent and the Surviving Corporation shall use their respective reasonable best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that Parent and the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable).
) with respect to matters occurring prior to the Effective Time; provided, that (d1) In if the event existing policies expire, are terminated or canceled during such period Parent or the Company Surviving Corporation will use its reasonable best efforts to obtain substantially similar policies and (2) Parent or any of its successors or assigns (i) consolidates with or merges into any other person and the Surviving Corporation shall not be the continuing or surviving corporation or entity required to spend as an annual premium therefor an amount in excess of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5$280,000.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Select Medical of Mechanicsburg Inc), Merger Agreement (Intensiva Healthcare Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the The By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 ArticleXII of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at the Effective Time were directors or prior to the time of the consummation of the Offer were directorsofficers, officersemployees, fiduciaries or agents of the CompanyCompany in respect of actions or omissions occurring at or prior to the Effective Time, unless such modification shall be required by Lawlaw.
(b) The Company From and after the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable Delaware Law, indemnify and hold harmless harmless, each present and former director, officer, fiduciary director and agent officer of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative based on the fact that such person is or investigative, was a director or officer of the Company and arising out of or pertaining to any action or omission occurring at or before the Effective Time (and shall promptly pay any expenses in advance of the final disposition of such action or after proceeding to each Indemnified Party to the date hereoffullest extent permitted under Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under Delaware Law). In the event of any such actual or threatened claim, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and shall pay all other reasonable expenses in advance of the final disposition of such action, (ii) the Company Surviving Corporation shall cooperate and use all reasonable efforts to assist in the vigorous defense of any such mattermatter and (iii) to the extent any determination is required to be made with respect to whether any Indemnified Party's conduct complies with the standards set forth under Delaware Law, such determination shall be made by independent legal counsel selected by the Indemnified Party and reasonably acceptable to the Surviving Corporation; provided, however, that the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided further that the Surviving Corporation shall not be obligated pursuant to this Section 6.04(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action except to the extent, as determined by counsel to the Indemnified Parties, that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Surviving Corporation.
(c) The Company Surviving Corporation shall use its reasonable efforts to maintain until the earlier of (i) the sixth anniversary of in effect for three years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.04(c) more than an amount per year equal to 150% of current annual premiums paid by the Company for such insurance.
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in this Section 56.04.
(e) Purchaser Parent shall use pay all reasonable efforts to cause expenses incurred by any Indemnified Party in connection with the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit enforcement of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofprovisions of this Section6.04.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Viacom Inc), Agreement and Plan of Merger (Viacom Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending To the fullest extent permitted by law, from and after the Effective Time, the Surviving Entity shall provide exculpation, indemnification and advancement of expenses for each Indemnitee, which is at least as favorable in scope and amount to such Indemnitee as the exculpation, indemnification and advancement of expenses provided to such Indemnitee by the Company and the Company Subsidiaries, as applicable, immediately prior to the Effective Time in the Company Charter and the Company Bylaws or the applicable Company Subsidiary’s respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents), as in effect on the earlier date of this Agreement; provided that such exculpation, indemnification and advancement of expenses shall cover actions and omissions occurring at or prior to the Effective Time, including all transactions contemplated by this Agreement.
(ib) Without limiting the sixth anniversary provisions of Section 6.9(a), during the period commencing as of the Effective Time and ending on the sixth (ii6th) the Liquidation Date, the By-laws anniversary of the Company shall contain provisions no less favorable with respect to indemnification or Effective Time, Parent and the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company Surviving Entity shall, to the fullest extent permitted under applicable Lawby law (and Parent shall cause the Surviving Entity to): (i) indemnify, indemnify defend and hold harmless each present Indemnitee against and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all from any costs and or expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)Action, whether civil, criminal, administrative or investigative, arising to the extent such Action arises out of or pertaining pertains to (x) any action or omission occurring before or after the date hereof. In the event alleged action or omission in such Indemnitee’s capacity as a director, officer, partner, manager, member, trustee, employee or agent of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received any of the Company Subsidiaries or of any other corporation, partnership, limited partnership, limited liability company, trust, association, employee benefit plan or other enterprise for whom such person served in such capacity at the request of the Company or any Company Subsidiary, or (y) this Agreement or any of the transactions contemplated hereby, including the Mergers; and (ii) pay in advance of the Company shall cooperate in the defense final disposition of any such matter; providedAction the expenses (including attorneys’ fees and any expenses incurred by any Indemnitee in connection with enforcing any rights with respect to indemnification or advancement of expenses) of any Indemnitee upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the contrary set forth in this Agreement, however, that Parent or the Company Surviving Entity (i) shall not be liable for any settlement effected without its their prior written consent (which consent shall not be unreasonably withheld), delayed or conditioned) and (ii) shall not have any obligation hereunder to any Indemnitee to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable Law, in which case the Indemnitee shall promptly refund to Parent or the Surviving Entity the amount of all such expenses theretofore advanced pursuant hereto with respect to which such Indemnitee is not entitled to be indemnified.
(c) The Prior to the Effective Time, the Company shall maintain until or, if the earlier Company is unable to, Parent shall cause the Surviving Entity as of the Effective Time to, obtain and fully pay the premium for the non-cancellable extension of the coverage afforded by the Company’s existing directors’ and officers’ liability insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case, for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period or time at or prior to the Effective Time from one or more insurance carriers with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions and retentions that are no less favorable in the aggregate than the coverage provided under the Company’s existing policies and with limits of liability that are no lower than the limits on the Company’s existing policies as long as the annual premium in the aggregate does not exceed 175% of the annual aggregate premium(s) under the Company’s existing policies. If the Company or the Surviving Entity for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the sixth anniversary Surviving Entity shall continue to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date hereof with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable in the aggregate than the coverage provided under the Company’s existing policies as of the date hereof, or (ii) Parent shall provide, or shall cause the Surviving Entity to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s D&O Insurance with comparable D&O Insurance that provides coverage for events occurring at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, that is no less favorable in the aggregate than the existing policy of the Company (which may be provided under Parent’s directors’ and (iiofficers’ liability insurance policy) the Liquidation Dateor, if availablesubstantially equivalent insurance coverage is unavailable, the current directors' best available coverage; provided, however, that Parent and officers' liability insurance policies maintained the Surviving Entity shall not be required to pay an annual premium for the D&O Insurance in excess of 300% of the annual premium currently paid by the Company (provided for such insurance; and provided, further, that if the Company may substitute therefor policies annual premiums of at least such insurance coverage exceed such amount, Parent or the same Surviving Entity shall be obligated to obtain a policy with the greatest coverage containing terms and conditions which are available, with respect to matters occurring prior to the Effective Time, for a cost not less favorable)exceeding such amount.
(d) The Indemnitees to whom this Section 6.9 applies are intended to be third-party beneficiaries of this Section 6.9. The provisions of this Section 6.9 are intended to be for the benefit of each Indemnitee and his or her successors, heirs, executors, trustees, fiduciaries, administrators or representatives. Parent shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnitee in successfully enforcing the indemnity and other obligations provided in this Section 6.9.
(e) The rights of each Indemnitee under this Section 6.9 shall be in addition to any rights such Person or any employee of the Company or any Company Subsidiary may have under the Company Charter, the Company Bylaws or the certificate of incorporation or bylaws (or equivalent organizational or governing documents) of any of the Company Subsidiaries, or the Surviving Entity or any of its subsidiaries, or under any applicable Law or under any agreement of any Indemnitee or any employee with the Company or any of the Company Subsidiaries listed in Section 4.12 of the Company Disclosure Letter. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.9 is not prior to, or in substitution for, any such claims under any such policies.
(f) Notwithstanding anything contained in Section 9.1 or Section 9.7 to the contrary, this Section 6.9 shall survive the consummation of the Mergers indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Entity and its subsidiaries, and shall be enforceable by the Indemnitees and their successors, heirs or representatives. In the event that Parent or the Company Surviving Entity or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Entity, as applicable, shall assume succeed to the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts 6.9. The parties acknowledge and agree that Parent guarantees the payment and performance of the Surviving Entity’s obligations pursuant to cause the Company to perform all of its obligations under this Section 56.9.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (CapLease, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on After the earlier of (i) Effective Time through the sixth anniversary of the Effective Time Time, HoldCo and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company Surviving Corporation B shall, to the fullest extent permitted under applicable Lawjointly and severally, indemnify and hold harmless each present and (as of the Effective Time) or former director, officer, fiduciary director or employee of Conectiv and agent of the Company and each of its subsidiaries Subsidiaries (collectively, the "Indemnified Parties") ), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities fees and settlement amounts paid expenses) incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by fact that the Indemnified PartiesParty is or was an officer, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and director or employee of Conectiv or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Company Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law; provided that no Indemnified Party may settle any such claim without the prior approval of HoldCo (which approval shall cooperate not be unreasonably withheld or delayed). Each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, proceeding or investigation from HoldCo or Surviving Corporation B within ten Business Days of receipt by HoldCo or Surviving Corporation B from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL, to repay such matter; provided, however, advances if it is ultimately determined that the Company shall such person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)entitled to indemnification.
(cb) The Company HoldCo shall cause Surviving Corporation B to maintain until the earlier of in effect (i) the sixth anniversary in its certificate of incorporation and by-laws for a period of six years after the Effective Time Time, the current provisions regarding elimination of liability of directors and indemnification of, and advancement of expenses to, officers, directors and employees contained in the certificate of incorporation and by-laws of Conectiv and (ii) at the Liquidation Dateelection of HoldCo, if availablefor a period of six years after the Effective Time, (A) maintain in effect the current policies of directors' and officers' liability insurance policies and fiduciary liability insurance maintained by the Company Conectiv (provided that the Company Surviving Corporation B may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are 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 Surviving Corporation B be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by Conectiv for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, Surviving Corporation B shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount or (B) provide tail coverage for such persons covered by current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Conectiv which tail coverage shall provide coverage for a period of six years for acts prior to the Effective Time on terms no less favorable)favorable than the terms of such current insurance coverage.
(c) Notwithstanding anything herein to the contrary, if any claim, action, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.8 shall continue in effect until the final disposition of such claim, action, proceeding or investigation.
(d) In the event the Company that Surviving Corporation B or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and or assigns of the Company Surviving Corporation B shall assume succeed to the obligations set forth in Section 5.6 and this Section 55.8.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Potomac Electric Power Co), Merger Agreement (Conectiv)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the The By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 XV of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each Subsidiary and each fiduciary and agent of its subsidiaries each such director and officer (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the date hereofEffective Time, until the expiration of the statute of limitations relating thereto (and shall pay any expenses in advance of the final disposition of such action or proceeding to each Indemnified Party to the fullest extent permitted under Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under Delaware Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, further, that neither the Company nor the Surviving Corporation shall be obligated pursuant to this Section 5.05(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action except (x) that the persons who served as directors of the Company who were not designees of Parent shall be entitled to retain one additional counsel (plus appropriate local counsel) to represent them at the expense of the Company or the Surviving Corporation, and (y) to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Company or the Surviving Corporation; and provided further that, in the event that any claim for indemnification is asserted or made within the period prior to the expiration of the applicable statute of limitations, all rights to indemnification in respect of such claim shall continue until the disposition of such claim. Parent hereby agrees to guarantee the obligations of the Surviving Corporation and, following consummation of the Offer, the Company, under this Section 5.05(b).
(c) The Company Surviving Corporation shall use its reasonable efforts to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.05(c) more than an amount per year equal to 175% of current annual premiums paid by the Company for such insurance. In the event that, but for the proviso to the immediately preceding sentence, the Surviving Corporation would be required to expend more than 175% of current annual premiums, the Surviving Corporation shall obtain the maximum amount of such insurance obtainable by payment of annual premiums equal to 175% of current annual premiums.
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in this Section 55.05.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Novartis Inc), Agreement and Plan of Merger (Novartis Inc)
Directors’ and Officers’ Indemnification and Insurance. From and after the Effective Time, the Surviving Corporation shall (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former directorharmless, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including attorneys' attorney’s fees), judgments, fines, losses, claims, damages, damages or liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out and provide advancement of expenses to, all past and present directors and officers of the Company (in all of their capacities) (the “Indemnified Persons”) to the same extent such persons are indemnified or pertaining have the right to any action or omission occurring before or after advancement of expenses as of the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) this Agreement by the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory pursuant to the Company’s Constituent Documents and indemnification agreements, promptly after statements therefor are received if any, in existence on the date hereof with any Indemnified Persons, (b) honor the provisions regarding elimination of liability of directors, indemnification of officers and (ii) the Company shall cooperate directors and advancement of expenses contained in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of Company’s Constituent Documents immediately prior to the Effective Time and (iic) use reasonable best efforts to maintain for a period of six (6) years after the Liquidation Date, if available, Effective Time the current policies of directors' ’ and officers' ’ liability insurance policies and fiduciary liability insurance (“D & O Insurance”) maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not are, in the aggregate, no less favorableadvantageous 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).
(d) In ; and provided, further, that in no event shall the event Surviving Corporation be required to expend in any one year more than 250% of the current annual premium expended by the Company and the Company Subsidiaries to maintain or any procure such D & O Insurance immediately prior to the Effective Time (such 250% amount, the “Maximum Annual Premium”); provided, further, that if the annual premiums of its successors or assigns (i) consolidates such insurance coverage exceed such amount, the Surviving Corporation shall use reasonable best efforts to obtain a policy with or merges into any other person and the greatest coverage available for a cost not exceeding the Maximum Annual Premium. The obligations of the Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.8 applies without the continuing or surviving corporation or entity consent of such consolidation or merger or affected indemnitee (ii) transfers all or substantially all of its properties and assets it being expressly agreed that the indemnitees to any person, then, and in each such case, proper provision whom this Section 6.8 applies shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofof this Section 6.8).
Appears in 2 contracts
Samples: Merger Agreement (CF Industries Holdings, Inc.), Merger Agreement (CF Industries Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. 7.8.1. NYB shall maintain in effect for six (a6) For a period ending on the earlier of (i) the sixth anniversary of years following the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' and officers' liability insurance policies maintained by the Company LIFC (provided provided, that the Company NYB may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring prior to or at the Effective Time; provided, however, that in no event shall NYB be required to expend in the aggregate pursuant to this Section 7.8.1 more than 150% of the annual cost currently expended by LIFC with respect to such insurance (the "Maximum Amount"); provided, further, that if the amount of the annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, NYB shall maintain the most advantageous policies of directors' and officers' insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, LIFC agrees in order for NYB to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
7.8.2. In addition to 7.8.1, from and after the Effective Time, NYB shall indemnify and hold harmless each person who is now, or who has been at any time before the date hereof, or who becomes before the Effective Time, an officer or director of LIFC (dthe "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 NYB, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a "Claim"), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of LIFC if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time (the "Indemnified Liabilities"), to the fullest extent permitted under LIFC's Certificate of Incorporation or Bylaws to the extent permitted by applicable law. NYB shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by applicable state or Federal law 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 7.8.2 upon learning of any Claim, shall notify NYB (but the failure so to notify NYB shall not relieve it from any liability which it may have under this Section 7.8.2, except to the extent such failure materially prejudices NYB) and shall deliver to NYB the undertaking referred to in the previous sentence. In the event of any such Claim (whether arising before or after the Company Effective Time) (1) NYB shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption NYB shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if NYB elects not to assume such defense, or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether or not any have yet actually arisen) issues which raise conflicts of interest between NYB and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them, and NYB shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) NYB shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be paid promptly as statements are received, (3) NYB shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), and (4) no indemnification shall be available to the extent the person seeking indemnification has not acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of LIFC or its successor, and with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful . The determination shall be made by a majority vote of a quorum consisting of the Directors of NYB who are not involved in such proceeding.
7.8.3. In the event that either NYB or any of its successors or assigns (i) consolidates with or merges into any other person and shall to the extent not be the continuing or surviving corporation or entity assumed by operation of such consolidation or merger or (ii) law, transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company NYB shall assume the obligations set forth in this Section 57.8.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all 7.8.4. The obligations of its obligations NYB provided under this Section 5.
(f) This Section 5 is 7.8 are intended for the benefit of to be enforceable against NYB directly by the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofbinding on all respective successors and permitted assigns of NYB.
Appears in 2 contracts
Samples: Merger Agreement (Long Island Financial Corp), Merger Agreement (New York Community Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending The Buyer Parties agree that all rights to indemnification or exculpation now existing in favor of, and all limitations on the earlier personal liability of (i) each present and former director or officer of IONA and its Subsidiaries provided for in the sixth anniversary respective organizational documents in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement), to the extent in effect as of the date hereof, shall continue in full force and effect for a period of six (ii6) years after the Liquidation DateEffective Time. During such period, the By-laws of the Company Buyer Parties shall contain provisions no less favorable with respect to indemnification not amend, repeal or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and otherwise modify such provisions shall not be amended, repealed or otherwise modified for indemnification in any manner that would materially and adversely affect adversely the rights thereunder of individuals who at any time prior to the Effective Time was a director or officer of IONA and its Subsidiary in respect of actions or omissions occurring at or prior to the time Effective Time (including, without limitation, actions or omissions occurring at or prior to the Effective Time arising out of the consummation of the Offer were directors, officers, fiduciaries or agents of the Companytransactions contemplated by this Agreement), unless such modification shall be is required by Lawlaw; provided, however, that in the event any claim or claims are asserted or made either prior to the Effective Time or within such six-year period, all rights to indemnification required to be continued pursuant to this Section 7.4(a) in respect of any such claim or claims shall continue until disposition of any and all such claims.
(b) The Company Prior to the Effective Time, IONA shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Scheme becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Buyer Parties shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former directordirector or officer of IONA and their respective heirs and representatives (each an “Indemnified Party” and, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "“Indemnified Parties"”) against all costs and expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacities as directors or officers, in each case occurring before or after the date hereofEffective Time (including the transactions contemplated by this Agreement). In Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) IONA or the Company Buyer Parties and the Surviving Corporation, as the case may be, shall pay be entitled to control the reasonable fees and expenses defense of such claim, action, suit, proceeding or investigation, (ii) if IONA, the Buyer Parties or the Surviving Corporation (or counsel selected by the applicable insurer of IONA or the Surviving Corporation) does not elect to control the defense of such claim, action, suit, proceeding or investigation, the Indemnified PartiesParty shall be entitled to select counsel for the Indemnified Party, which counsel shall be reasonably satisfactory to IONA or to the CompanyBuyer Parties and the Surviving Corporation, as the case may be, and IONA or the Buyer Parties and the Surviving Corporation shall pay the fees and expenses of such counsel promptly after statements therefor are received and (iiunless the Surviving Corporation shall elect to defend such action), (iii) IONA or the Company Buyer Parties shall cooperate in the defense of any such matter; , provided, however, that neither IONA nor the Company Buyer Parties shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed); and (iv) neither IONA nor the Buyer Parties shall settle or compromise any such claim, action, suit, proceeding or investigation without the Indemnified Party’s written consent thereto (which consent shall not be unreasonably withheld or delayed).
(c) The Company At or prior to the Effective Time, IONA shall maintain until purchase a “tail” directors’ and officers’ liability insurance policy (which by its terms shall survive the earlier of Acquisition) for its directors and officers, which shall provide such directors and officers with coverage for six (i6) the sixth anniversary of years following the Effective Time of not less than the existing coverage under, and (ii) have other terms not materially less favorable on the Liquidation Date, if availablewhole to, the current insured persons than the directors' ’ and officers' ’ liability insurance policies coverage presently maintained by IONA, so long as the Company aggregate cost is no more than 200% of the annual premium paid by IONA in its most recent fiscal year (provided the “Maximum Amount”). In the event that the Company Maximum Amount is insufficient for such coverage, IONA may substitute therefor policies of at least spend up to the same Maximum Amount to purchase such lesser coverage containing terms as may be obtained with such amount. The Buyer Parties shall, and conditions which are not less favorable)shall cause IONA to, maintain such policy in full force and effect, and continue to honor the obligations thereunder.
(d) The obligations under this Section 7.4 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.4 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 7.4 applies and any such indemnitees’ heirs or representatives, shall be third party beneficiaries of this Section 7.4 and shall be entitled to enforce the covenants contained herein).
(e) In the event the Company Buyer Parties or IONA or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Company shall Buyer Parties or IONA, as the case may be, assume the obligations set forth in this Section 57.4.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Implementation Agreement (Progress Software Corp /Ma), Implementation Agreement (Iona Technologies PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Parent shall, or shall cause the earlier of (i) Surviving Entity to, fulfill and honor the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws obligations of the Company shall contain provisions no less favorable with respect to indemnification or the liability of Company’s officers and directors than are set forth in Article VII, Section 7.2 of (the By-laws “Indemnified Directors and Officers”) pursuant to the terms of the Company’s Certificate of Incorporation, By-Laws, and such provisions shall not be amendedcontractual obligations, repealed or otherwise modified each as in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time effect as of the consummation date of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Lawthis Agreement.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, This Section 6.6 (i) shall survive the Company shall pay consummation of the reasonable fees and expenses of counsel selected by the Indemnified PartiesMerger, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) is intended to benefit the Company shall cooperate Indemnified Directors and Officers and their heirs and (iii) is in the defense of addition to, and not in substitution for, any other rights to indemnification or contribution that any such matter; provided, however, that Person may have against Parent or the Company Surviving Entity first arising after the Closing Date by contract or otherwise. This Section 6.6 shall not be liable for terminated or modified in such a manner as to adversely affect the rights of any settlement effected Indemnified Director and Officer under this Section 6.6 without its written the consent (which consent shall not be unreasonably withheld)of such affected Indemnified Director and Officer.
(c) The Company If Parent or the Surviving Entity or any of their respective successors or assigns shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger or (ii) transfers transfer all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of Parent or the Company shall Surviving Entity, as applicable, assume all of the obligations of Parent or the Surviving Entity, as applicable, set forth in this Section 56.6.
(ed) Purchaser As of the Effective Time, Parent or the Surviving Entity (with the election being at Parent’s option) shall have purchased and shall maintain in full force and effect for a period of six (6) years after the Closing Date (or, if any claim is asserted or made within such six-year period, Parent shall ensure that such insurance remains in effect until final disposition of such claim) a directors’ and officers’ liability insurance policy or policies from one or more reputable carriers and shall use all commercially reasonable efforts to cause provide each Indemnified Director and Officer coverage for events occurring prior to the Company Effective Time (including acts or omissions relating to perform all the approval of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit Agreement and consummation of the transactions contemplated hereby) in the amount of at least $5 million and otherwise on terms and conditions reasonable and customary for companies comparable to Parent and that are no less favorable than the coverage provided under the Company’s existing policies as of the date hereof. Nothing herein shall require the Parent to provide insurance for any Indemnified Parties Director and Officer with insurance coverage for any action by any such Indemnified Director and Officer in breach of this Agreement or otherwise in connection with their respective heirsfraud, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofwillful misconduct or intentional misrepresentation or omission in connection with the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Valor Gold Corp.), Merger Agreement (Pershing Gold Corp.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time Surviving Corporation and (ii) the Liquidation Date, the By-laws each of the Company its Subsidiaries shall contain provisions no less favorable with respect to indemnification or the limitation of liability of directors than are set forth in Article VII, Section 7.2 VII of the By-laws Restated Certificate and Article V of the CompanyBylaws of the Company as of the date of this Agreement, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior any time from and after the date of this Agreement and to and including the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the CompanyCompany or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification shall be is required by Lawlaw. From and after the Purchaser's Election Date, the Company shall not amend, repeal or otherwise modify the limitation of liability provisions of Article VII of the Restated Certificate or the indemnification or advancement of expenses provisions in the Restated Certificate of any of the Company's Subsidiaries in any manner that would adversely affect the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of the Company or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification is required by law.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and indemnify, hold harmless and defend, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify, hold harmless and defend, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any threatened or actual claim, action, suit, proceeding or investigation (whether arising before before, on or after the date hereofEffective Time) ("Claim"), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent (including, without limitation, any Claim arising out of this Agreement or any of the transactions contemplated hereby or the operations of the Company or the condition of the assets of the Company), whether occurring before before, on or after the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, for a period of six years after the later of the date hereofof this Agreement and the Effective Time, in each case to the fullest extent permitted under Delaware Law (and shall pay any expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under Delaware Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Indemnified Parties may retain counsel (including local counsel) satisfactory to them and the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Companysuch counsel, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate use all reasonable efforts in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided further that neither the Company nor the Surviving Corporation shall be obligated pursuant to this Section 6.07(b) to pay the fees and expenses of more than one counsel (plus appropriate local counsel) for all Indemnified Parties in any single action unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case such additional counsel (including local counsel) as may be required to avoid any such conflict or likely conflict may be retained by the Indemnified Parties at the expense of the Company or the Surviving Corporation; and provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company shall maintain until shall, from and after the earlier date of (i) the sixth anniversary of this Agreement and to and including the Effective Time Time, and (ii) the Liquidation DateSurviving Corporation shall, if availablefor six years from the Effective Time, maintain in effect the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to such officers and directors so long as substitution does not less favorable)result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time.
(d) Except as otherwise provided in this Agreement and only to the extent permitted by applicable law and public policy, the Surviving Corporation, Parent and Purchaser each hereby release and discharge each Indemnified Party from, and covenant not to sue xxx Indemnified Party with regard to, any Claim, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent (including, without limitation, any Claim arising out of this Agreement or any of the transactions contemplated hereby or the operations of the Company or the condition of the assets of the Company). Such release and covenant not to sue xxxlude Claims resulting in any way from the negligence or strict liability of any Indemnified Party, whether the negligence or strict liability is active, passive, joint, concurrent, or sole.
(e) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 56.07.
(f) This Section 5 is intended for the benefit The By-laws of the Indemnified Parties Surviving Corporation and their respective heirseach of its Subsidiaries shall contain the provisions with respect to indemnification, executors defense and personal representatives advancement of expenses set forth in the By-laws of the Company on the date of this Agreement, and such provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of the Company or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law or is desired to conform such provisions with comparable provisions in the By-laws of Parent, which By-law provisions shall be enforceable at least as favorable to such individuals as the provisions contained in the Bylaws of Parent on the date of this Agreement. From and after the Purchaser's Election Date, the Company shall not amend, repeal or otherwise modify the indemnification, defense and advancement of expenses provisions of the By-laws of the Company or the indemnification, defense and advancement of expenses provisions in the By-laws of any of the Company's Subsidiaries in any manner that would adversely affect the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of the Company or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by them this Agreement), unless such modification is required by law or is desired to conform such provisions with comparable provisions in the By-laws of Parent, which By-law provisions shall be at least as third favorable to such individuals as the provisions contained in the Bylaws of Parent on the date of this Agreement.
(g) The obligations of the Company or the Surviving Corporation under this Section 6.07 shall not be terminated or modified in such a manner as to adversely affect any director, officer, employee, fiduciary and agent to whom this Section 6.07 applies without the consent of each affected director, officer, employee, fiduciary and agent (it being expressly agreed that the directors, officers, employees, fiduciaries and agents to whom this Section 6.07 applies shall be third-party beneficiaries hereofof this Section 6.07).
(h) In the event that the Company or the Surviving Corporation should fail, at any time from and after the Purchaser's Election Date, to comply with any of the foregoing obligation set forth in this Section 6.07, for any reason, Parent shall be responsible therefor and hereby agrees to perform such obligations unconditionally without regard to any defense or other basis for nonperformance which the Company or the Surviving Corporation may have or claim (except as would be prohibited by applicable Delaware Law), it being the intention of this subsection (h) that the officers, directors, employees, fiduciaries and agents of the Company and its Subsidiaries shall be fully indemnified and that the provisions of this subsection (h) be a primary obligation of Parent and not merely a guarantee by Parent of the obligations of the Company or Purchaser.
(i) Parent and Purchaser understand that the Company has entered into contractual indemnification arrangements with each of its current directors and executive officers.
Appears in 2 contracts
Samples: Merger Agreement (McFarland Energy Inc), Merger Agreement (McFarland Energy Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier Parent and Merger Sub agree that all rights to exculpation and indemnification (and all rights to advancement of (iexpenses relating thereto) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification for acts or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who omissions occurring at or prior to the time Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement, including the Merger), now existing in favor of the consummation Indemnitees as provided in the Charter or By-laws (or such equivalent organizational or governing documents of the Offer were directors, officers, fiduciaries or agents any of the Company’s Subsidiaries as in effect on the date of this Agreement) or in any Contract between such Indemnitee and the Company or any of its Subsidiaries (in each case as in effect on the date hereof) shall survive the Merger and shall continue in full force and effect. From and after the Effective Time, unless such modification Parent and the Surviving Corporation shall be required by Law.
(band Parent shall cause the Surviving Corporation to) The Company shallindemnify, defend and hold harmless, and advance expenses to, to the fullest extent the Company would have been permitted to do so under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of Indemnitees with respect to (x) all acts or omissions by them in their capacities as such at any time at or prior to the Company and each of its subsidiaries Effective Time or (collectively, the "Indemnified Parties"y) against all any costs and or expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to the Merger, this Agreement and any transactions contemplated hereby, in either case, to the fullest extent permitted by (i) the Charter or By-laws (or such equivalent organizational or governing documents of any of the Company’s Subsidiaries as in effect on the date of this Agreement), (ii) any indemnification agreement of the Company or its Subsidiaries or other applicable contract as in effect on the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnitees or (iii) applicable Law. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the Indemnitees than those set forth in the Charter and By-laws and the Company’s Subsidiaries’ organizational documents as of the date of this Agreement, which provisions thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Indemnitees.
(b) Without limiting the provisions of Section 6.6(a), to the fullest extent the Company would have been permitted to do so under applicable Law, Parent and the Surviving Corporation will pay in advance of the final disposition of any claim, action, suit, proceeding or investigation the expenses (including attorneys’ fees) of any Indemnitee upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount even if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the contrary contained in this Section 6.6(b) or elsewhere in this Agreement, neither Parent nor the Surviving Corporation shall (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.6(b) unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnitees from all liability arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, and does not include an admission of fault or wrongdoing by any Indemnitee.
(c) Prior to the Effective Time, at the Company’s option, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancelable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period or time at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies as in effect as of the date hereof. If such “tail” prepaid policy has been obtained by either the Company or the Surviving Corporation prior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation. If the Company or the Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Company Surviving Corporation shall pay continue to maintain in effect, for a period of at least six (6) years from and after the reasonable fees and expenses Effective Time, the D&O Insurance in place as of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to date hereof with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, promptly after statements therefor conditions, retentions and limits of liability that are received and no less favorable than the coverage provided under the Company’s existing policies as of the date hereof, or (ii) Parent will provide, or cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s D&O Insurance with comparable D&O Insurance that provides coverage for events occurring at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, that is no less favorable than the existing policy of the Company shall cooperate in as of the defense of any such matterdate hereof or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that Parent and the Company Surviving Corporation shall not be liable required to pay an annual premium for any settlement effected without its written consent the D&O Insurance in excess of two hundred and fifty percent (which consent shall not be unreasonably withheld).
(c250%) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained annual premium currently paid by the Company (provided for such insurance; provided, further, that if the Company may substitute therefor policies annual premiums of at least such insurance coverage exceed such amount, Parent or the same Surviving Corporation shall be obligated to obtain a policy with the greatest coverage containing terms available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount. From and conditions which are not less favorableafter the Effective Time, Parent shall assume, be jointly and severally liable for, and honor, guaranty and stand surety for, and shall cause the Surviving Corporation and its Subsidiaries to honor, in accordance with their respective terms, each of the covenants contained in this Section 6.6(c).
(d) The Indemnitees to whom this Section 6.6 applies shall be third party beneficiaries of this Section 6.6. The provisions of this Section 6.6 are intended to be for the benefit of each Indemnitee and his or her successors, heirs or representatives. To the fullest extent the Company would have been permitted to do so under applicable Law, Parent shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnitee in enforcing the indemnity and other obligations provided in this Section 6.6.
(e) The rights of each Indemnitee under this Section 6.6 shall be in addition to any rights such Person may have under the Charter or By-laws (or equivalent organizational or governing documents of any of the Company’s Subsidiaries), certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation, under any applicable Law or under any agreement of any Indemnitee with the Company or any of its Subsidiaries.
(f) Notwithstanding any other provision of this Agreement, this Section 6.6 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Corporation and its Subsidiaries, and shall be enforceable by the Indemnitees and their successors, heirs or representatives. In the event that Parent or the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any personPerson, then, and in each such case, Parent shall ensure that proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as applicable, shall assume succeed to the obligations set forth in this Section 5.
(e) Purchaser shall 6.6 and use all its reasonable best efforts to cause ensure that a Person no less financially viable than the Company to perform all Surviving Corporation (in the event the Effective Time occurs) remains responsible for the obligations of its obligations such party under this Section 56.6.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Scientific Games Corp), Merger Agreement (WMS Industries Inc /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Parent and the earlier Surviving Corporation shall, jointly and severally, cause all rights to indemnification, advancement of (i) the sixth anniversary expenses and exculpation now existing in favor of the Effective Time and (ii) the Liquidation Date, the By-laws any present or former director or officer of the Company shall contain provisions no less favorable with respect to indemnification or any of its Subsidiaries and the liability fiduciaries of any Company Benefit Plans (the “Indemnified Parties”) as provided in the Company Organizational Documents, the resolutions of the Company Board or any committee of the Company Board, in the comparable organizational document of any of the Company’s Subsidiaries, the resolutions of the boards of directors, or any committee of the boards of directors than are set forth in Article VII, Section 7.2 or comparable governing bodies of any of the By-laws Subsidiaries of the Company, in agreements between an Indemnified Party and such provisions shall not be amended, repealed the Company or one of its Subsidiaries or otherwise modified in effect on the date of this Agreement, to survive the Merger and to continue in full force and effect for a period of not less than six years after the Effective Time or, if longer, for such period as is set forth in any manner that would affect adversely applicable Contract with an Indemnified Party in effect on the rights thereunder date of individuals who at or prior this Agreement, and, with respect to any Legal Action commenced during either such period, until the time final disposition of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by LawLegal Action.
(b) The Company Parent and the Surviving Corporation shall, jointly and severally, indemnify all Indemnified Parties to the fullest extent permitted under by applicable Law, indemnify Law with respect to all acts and hold harmless each present and former director, officer, fiduciary and agent omissions arising out of or relating to their services as directors or officers of the Company or its Subsidiaries or fiduciaries of the Company Benefit Plans, whether asserted or claimed at or after or occurring before the Effective Time (including in connection with the negotiation and each execution of its subsidiaries (collectivelythis Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement). If any Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to indemnification under this Agreement, Parent and the "Indemnified Parties") against all Surviving Corporation shall, jointly and severally, advance as incurred any costs and or expenses (including attorneys' feeslegal fees and disbursements), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid damages or Liabilities (“Damages”) out of or incurred in connection with any claimsuch Legal Action, actionsubject to Parent’s or the Surviving Corporation’s, suitas applicable, proceeding receipt of an undertaking by or investigation (whether arising before or after the date hereof)on behalf of such Indemnified Party, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected if required by the DGCL, to repay such Damages if it is ultimately determined under applicable Law that such Indemnified Parties, which counsel shall Party is not entitled to be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)indemnified.
(c) The Company shall Parent and the Surviving Corporation shall, jointly and severally, maintain until the earlier of (i) the sixth anniversary of in effect for at least six years after the Effective Time and (ii) the Liquidation Date, if available, the current policies of directors' ’ and officers' ’ liability insurance policies maintained by the Company (provided that the Company may substitute therefor or policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the directors and officers of the Company with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement) so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 200% of the last annual premium paid by the Company for such insurance before the date of this Agreement (such 200% amount being the “Maximum Premium”). If Parent and the Surviving Corporation are unable to obtain the insurance described in the prior sentence for an amount less favorablethan or equal to the Maximum Premium, Parent and the Surviving Corporation shall, jointly and severally, instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in lieu of the arrangements contemplated by this Section 5.7(c), the Company shall be entitled to purchase a “tail” directors’ and officers’ liability insurance policy covering the matters described in this Section 5.7(c) and, if the Company elects to purchase such a policy Parent and the Surviving Corporation’s obligations under this Section 5.7(c) shall be satisfied so long as Parent and the Surviving Corporation, jointly and severally, cause such policy to be maintained in effect for a period of six years following the Effective Time and, with respect to any Legal Action commenced during such period, until the final disposition of such Legal Action.
(d) The covenants contained in this Section 5.7 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(e) In the event that Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and or assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 55.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Itc Deltacom Inc), Merger Agreement (Earthlink Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Restated Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain the provisions no less favorable with respect to indemnification or the liability of directors than that are set forth in Article VII, Section 7.2 the Restated Certificate of Incorporation of the By-laws Company on the date of the Companythis Agreement, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time Effective Time were directors or officers of the consummation Company in respect of actions or omissions occurring at or prior to the Offer were directors, officers, fiduciaries or agents of the CompanyEffective Time, unless such modification shall be required by Lawlaw.
(b) The Company From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable Delaware Law, indemnify and hold harmless harmless, each present and former director, officer, fiduciary director and agent officer of the Company and each subsidiary of its subsidiaries the Company and each such individual who served at the request of the Company or any subsidiary of the Company as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the "“Indemnified Parties"”) against all costs and expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), Effective Time) whether civil, criminal, administrative or investigative, based on the fact that such person is or was a director or officer of the Company and arising out of or pertaining to any action or omission occurring at or before the Effective Time (including the transactions contemplated by this Agreement) (and shall pay any expenses in advance of the final disposition of such action or after proceeding to each Indemnified Party to the date hereoffullest extent permitted under Delaware Law, upon receipt from the Indemnified Party to whom expenses are advanced of any undertaking to repay such advances required under Delaware Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Company Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and (ii) the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided further that the Surviving Corporation shall not be obligated pursuant to this Section 7.05(b) to pay the fees and expenses of more than one counsel other than local counsel for all Indemnified Parties in any single action unless a conflict of interest shall be caused thereby.
(c) The Company Ford shall provide or maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation Date, if available, the current directors' ’ and officers' ’ liability insurance policies maintained covering those persons who are covered by the Company (directors’ and officers’ liability insurance policy currently provided that for directors and officers of the Company may substitute therefor policies on terms comparable to such existing insurance coverage; provided, however, that Ford has no obligation to provide or maintain levels of coverage in excess of those to which directors and officers of Ford are at least the same coverage containing terms and conditions which are not less favorable)time entitled.
(d) In If the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation, as the case may be, shall assume the obligations of the Surviving Corporation set forth in this Section 57.05.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all The rights of its obligations each Indemnified Party under this Section 5.
(f) This Section 5 is intended for 7.05 shall be in addition to any rights such person may have under the benefit certificate of incorporation or bylaws of the Company or any of its subsidiaries, under Delaware Law or any other applicable laws or under any agreement of any Indemnified Parties Party with the Company or any of its subsidiaries. These rights shall survive consummation of the Merger and their respective heirsare intended to benefit, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofby, each Indemnified Party.
Appears in 2 contracts
Samples: Offer to Purchase (Ford Motor Co), Offer to Purchase (Ford Motor Co)
Directors’ and Officers’ Indemnification and Insurance. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Company and its Subsidiaries (a) For a period ending to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company's certificate of incorporation, bylaws and indemnification agreements, if any, in existence on the earlier of (i) the sixth anniversary of the Effective Time date hereof with any directors, officers and (ii) the Liquidation Date, the By-laws employees of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
its Subsidiaries and (b) The Company shallwithout limitation to clause (a), to the fullest extent permitted under applicable Lawby law, indemnify in each case for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and hold harmless each present the consummation of the transactions contemplated hereby), (ii) include and former directorcause to be maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws for a period of six years after the Effective Time, officerthe current provisions regarding elimination of liability of directors, fiduciary indemnification of officers, directors and agent employees and advancement of expenses contained in the certificate of incorporation and bylaws of the Company and each (iii) cause to be maintained for a period of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or six years after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time officers' and (ii) directors' liability insurance in respect of acts or omissions occurring prior to the Liquidation Date, if available, Effective Time covering such persons currently covered by the current Company's directors' and officers' liability insurance policies maintained by policy on terms with respect to coverage and amount no less favorable than those of such policy in effect on the Company (date hereof, provided that that, in satisfying its obligation under this Section 5.7, the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and Surviving Corporation shall not be obligated to pay premiums in excess of 200% of the continuing amount per annum the Company paid in its last full fiscal year. The obligations of the Surviving Corporation under this Section 5.7 shall not be terminated or surviving corporation or entity modified in such a manner as to adversely affect any indemnitee to whom this Section 5.7 applies without the consent of such consolidation or merger or affected indemnitee (ii) transfers all or substantially all of its properties and assets it being expressly agreed that the indemnitees to any person, then, and in each such case, proper provision whom this Section 5.7 applies shall be made so that the successors and assigns third party beneficiaries of this Section 5.7). Without limiting any of the Company shall assume the obligations set forth above, nothing in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and 5.7 shall be enforceable by them as third construed to make Parent, Merger Sub or the Surviving Corporation a co-insurer with any third-party beneficiaries hereofprovider of directors' and officers' liability insurance.
Appears in 2 contracts
Samples: Merger Agreement (Pepsico Inc), Merger Agreement (Quaker Oats Co)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws Ninth of the Company's Certificate of Incorporation as in effect on June 30, and such 2005, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) Prior to the Effective Time, the Company will purchase and pay for a directors' and officers' liability insurance policy, or tail coverage under the Company's existing directors' and officers' liability insurance policy, providing coverage of not less than six years, subject to substantially the same limits, terms and conditions as the policy in force immediately prior to the Effective Time, with respect to matters occurring prior to the Effective Time. The total cost of the directors' and officers' liability coverage described in the preceding sentence shall not exceed 225% of the last annual premium payable prior to the date of this Agreement which was $55,000. The Company shall, and Parent shall cooperate to seek and obtain the fullest extent insurance coverage contemplated by this Section 6.07(b) at the lowest cost for a carrier of recognized financial standing (which shall include the Company's current carrier). If the cost of providing and maintaining the insurance coverage in accordance with this Section 6.07(b) would exceed the amount permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' feesby this Section 6.07(b), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay notify the reasonable fees covered officers and expenses directors and Parent of counsel selected by the Indemnified Partiesamount of such excess and give the covered officers and directors the opportunity to reimburse the Company the amount of such excess, which counsel shall be reasonably satisfactory to and if and for so long as such reimbursement is made the Company, promptly after statements therefor are received Parent and the Surviving Corporation shall continue to provide and maintain insurance in accordance with this Section 6.07(b); and (ii) if and to the extent the covered officers and directors do not reimburse the Company in accordance with the immediately preceding clause (i), then the Company shall cooperate in provide (at no cost to the defense covered officers and directors) the greatest amount of any such matter; provided, however, that substantially equivalent insurance obtainable at a total cost of 225% of the Company shall not be liable for any settlement effected without its written consent (last annual premium payable prior to the date of this Agreement which consent shall not be unreasonably withheld)was $55,000.
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 56.07.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Baycorp Holdings LTD), Merger Agreement (Baycorp Holdings LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The certificate of (i) the sixth anniversary incorporation and bylaws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, VIII and Section 7.2 6.07 of the By-laws certificate of incorporation and bylaws of the Company, and such respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawbylaw.
(b) The Company shallParent and the Surviving Corporation shall jointly and severally, to the fullest extent permitted under applicable Law, indemnify indemnify, defend and hold harmless harmless, each present and former director, officer, fiduciary and agent officer or employee of the Company and each or any of its subsidiaries Subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the Offer or the Merger or (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time, to the same extent as provided in the Company's certificate of incorporation or bylaws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. Any Indemnified Party wishing to claim indemnification under this Section 7.06(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) Parent or the Company Surviving Corporation shall pay have the reasonable fees right to assume the defense thereof with legal counsel of Parent's choosing and Parent shall not be liable to such Indemnified Party for any legal expenses of other counsel selected or any other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, provided, however, that the Indemnified PartiesParty may employ counsel of its own choosing if it has reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Parent and the Surviving Corporation in the conduct of the defense of an action, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall Indemnified Party will cooperate in the defense of any such matter; provided, however, that the Company and (iii) Parent shall not be liable for any settlement effected without its prior written consent (which consent shall will not be unreasonably withheldwithheld or delayed); and provided, further, that Parent shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) The Company Parent shall cause the Surviving Corporation to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' and officers' liability insurance policies maintained by the Company as of the date hereof (provided that the Company Surviving Corporation may substitute therefor a policy or policies of at least the same coverage containing terms and conditions which that are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 7.06(c) more than an amount per year equal to 150% of the annual premium paid by the Company for such insurance as of the date hereof.
(d) In the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 57.06.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all The rights of its obligations each Indemnified Party under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and 7.06 shall be enforceable by them as third party beneficiaries hereofby, and are intended to benefit, each Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Esperion Therapeutics Inc/Mi), Merger Agreement (Pfizer Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time Time, Parent shall, and (ii) shall cause the Liquidation DateSurviving Corporation to, the By-laws indemnify and hold harmless each present and former director and officer of the Company shall contain provisions no less favorable with respect to indemnification or and each person who served at the liability of directors than are set forth in Article VII, Section 7.2 request of the By-laws Company as a director, officer or trustee of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall"Indemnified Parties"), to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before in their capacity as an officer, director, employee or after fiduciary, including, without limitation, the transactions contemplated by this Agreement (and shall also advance, or cause to be advanced, expenses as incurred to the fullest extent permitted under applicable Law). Parent and Merger Sub agree that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's Articles of Organization and By-Laws, as in effect as of the date hereof. In , with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time.
(b) Without limiting or expanding the foregoing, in the event of any such claim, action, suit, proceeding or investigationinvestigation (a "Claim") that is subject to Section 6.05(a) is brought against any Indemnified Party at or after the Effective Time, (i) the Company Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation, (ii) Parent and the Surviving Corporation shall pay the all reasonable fees and expenses of such counsel selected by for the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, Parties promptly after as statements therefor are received received, and (iiiii) Parent and the Company shall cooperate Surviving Corporation will use all reasonable efforts to assist in the vigorous defense of any such matter; provided, however, provided that neither Parent nor the Company Surviving Corporation shall not be liable for any settlement of any Claim effected without its written consent (consent, which consent consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.05, upon learning of any such Claim, shall notify Parent (but the failure so to notify Parent shall not relieve Parent and the Surviving Corporation from any liability that either may have under this Section 6.05 except to the extent such failure materially prejudices them). The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless, under applicable standards of professional conduct, there is or would reasonably be expected to be a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) The Company shall maintain until the earlier For a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation DateTime, if available, Parent shall cause to be maintained in effect the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not no less favorable)advantageous) with respect to claims arising from facts or events that occurred prior to the Effective Time.
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Parexel International Corp), Merger Agreement (Covance Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company may, and in any event, Parent will cause the Surviving Corporation to, purchase, at or prior to the Effective Time, a six-year prepaid directors and officers liability insurance “tail policy” for the Company’s existing directors and officers as shall be approved by Parent and the Company (the “D&O Tail Policy”). For a period ending on of six years following the earlier Effective Time, Parent agrees, and agrees to cause the Surviving Corporation and its subsidiaries, to honor and perform under, all indemnification agreements entered into by the Company or any of (i) its subsidiaries prior to the sixth anniversary date hereof and which are listed in Section 3.16 of the Effective Time Company Disclosure Schedule and (ii) to provide exculpation, indemnification and reimbursement of expenses to the Liquidation Date, Company's existing and former officers and directors on terms no less favorable than those provided in Articles Eleventh and Seventeenth of the Bycertificate of incorporation and the by-laws of the Company shall contain provisions no less favorable with respect to indemnification as in effect on the date hereof whether or not a comparable provision is contained in the liability Certificate of directors than are set forth in Article VII, Section 7.2 Incorporation of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by LawSurviving Corporation.
(b) The Company shall, Notwithstanding anything herein to the fullest extent permitted under applicable Lawcontrary, indemnify and hold harmless each if a present and or former director, officer, fiduciary and agent officer of director of the Company and each or any of its subsidiaries (collectively, the "an “Indemnified Parties"Party”) against all costs and expenses is a party to or is otherwise involved (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid as a witness) in connection with any threatened or pending claim, action, suit, proceeding or investigation whether civil, criminal or administrative (“Proceeding”) (whether arising before before, at or after the date hereof), whether civil, criminal, administrative Effective Time) on or investigative, arising out of or pertaining prior to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' and officers' liability insurance policies maintained by provisions of this Section 6.7 shall continue in effect until the Company (provided that the Company may substitute therefor policies final disposition of at least the same coverage containing terms and conditions which are not less favorable)such Proceeding.
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(fc) This Section 5 covenant is intended to be for the benefit of the Indemnified Parties and their respective heirsof, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofby, each Indemnified Party and their respective heirs and legal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Wilshire Enterprises Inc), Merger Agreement (Jekogian Iii Nickolas W)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation and Bylaws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to exculpation and indemnification or the liability of directors than are set forth in Article VII, Section 7.2 EIGHTH of the By-laws Certificate of Incorporation of the Company, and such Article IV of the Bylaws of the Company, respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by LawCompany or any of the Subsidiaries.
(b) The Company After the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent permitted under applicable Law, indemnify and hold harmless harmless, each present and former director, officer, fiduciary director and agent officer of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, occurring on or before the Effective Time, to the same extent as provided in the Certificate of Incorporation and Bylaws of the Company or after any other applicable contract or agreement in effect on the date hereofof this Agreement. In the event of any such claim, action, suit, proceeding or investigation, (i) Parent or the Company Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and (provided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification), (ii) neither Parent nor the Company Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any pending or threatened Action to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents, and (iii) the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither Parent nor the Company Surviving Corporation shall not be liable for any settlement effected without its the Surviving Corporation's written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 6.04(b) 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 action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided further that, in the event that any claim for indemnification is asserted or made within such six year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim. The rights of each Indemnified Person under this Section 6.04(b) shall be in addition to any rights such person may have under the Certificate of Incorporation or the Bylaws of the Company and the Surviving Corporation or any of their Subsidiaries, or under any Law or under any agreement of any Indemnified Person with the Company or any of its Subsidiaries.
(c) The Company Surviving Corporation shall maintain until the earlier of either (i) the sixth anniversary of cause to be obtained at the Effective Time "tail" insurance policies with a claims period of at least six years from the Effective Time with respect to directors' and officers' liability insurance in amount and scope at least as favorable as the Company's existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six years from the Liquidation DateEffective Time, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which that are not less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.04(c) more than an amount per year equal to 250% of current annual premiums paid by the Company for such insurance; provided, however, that in the event of an expiration, termination or cancellation of such current policies, Parent or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums. The Company represents that such current annual premium amount is set forth in Section 6.04(c) of the Company Disclosure Schedule.
(d) In the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 56.04.
(e) Purchaser Parent shall use all reasonable efforts to cause the Company Surviving Corporation to perform all of its the obligations of the Surviving Corporation under this Section 56.04.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (Boca Resorts Inc), Merger Agreement (Huizenga H Wayne)
Directors’ and Officers’ Indemnification and Insurance. (a) For Parent and Merger Sub agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of the current or former directors, officers or employees, as the case may be, of the Company or its subsidiaries as provided in the Certificate of Incorporation, the Bylaws or the equivalent organizational or governing documents of the Company’s subsidiaries or in any written agreement set forth on Section 5.7(a) of the Company Disclosure Letter (the “Indemnity Agreements”) shall survive the Merger and shall continue in full force and effect in accordance with their terms to the extent provided in the following sentence. From and after the Effective Time and for a period ending on of at least six (6) years, the earlier of Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, and advance expenses (subject to the sixth anniversary person to whom expenses are advanced providing an undertaking to repay such advances if it is finally determined by a court of competent jurisdiction that such person is not entitled to indemnification) to, any individual who, on or prior to the Effective Time, was an officer, director or employee of the Company or served on behalf of the Company as an officer, director or employee of any of the Company’s subsidiaries or any of their predecessors and the heirs, executors, trustees, fiduciaries and administrators of such officer, director or employee (each, an “Indemnitee”) with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the fullest extent permitted by Law and required by (x) the Certificate of Incorporation, the Bylaws or the equivalent organizational or governing documents of the Company’s subsidiaries as in effect on the date of this Agreement and (y) the Indemnity Agreements, and (ii) not amend, repeal or otherwise modify for a period of at least six (6) years any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the rights thereunder of any Indemnitees. The Company has made available to Parent copies of the Indemnity Agreements.
(b) Without limiting the provisions of Section 5.7(a), during the period commencing as of the Effective Time and ending on the sixth (ii6th) the Liquidation Date, the By-laws anniversary of the Company Effective Time, Parent shall contain provisions no less favorable with respect to indemnification or cause the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, Surviving Corporation to the fullest extent permitted under applicable Law, (i) indemnify and hold harmless each present Indemnitee against and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all from any costs and or expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement actually and reasonably incurred by such Indemnitee in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)Proceeding, whether civil, criminal, administrative or investigative, to the extent such Proceeding arises out of or pertains to the fact that an Indemnitee is or was an officer, director or employee of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or non-profit entity (including any Proceeding arising out of or pertaining to the Merger, this Agreement and any action transactions contemplated hereby), in each case, whether asserted or omission occurring before claimed prior to, at or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received Effective Time; and (ii) pay in advance of the final disposition of any such Proceeding the expenses (including attorneys’ fees) of any Indemnitee upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the contrary contained in this Section 5.7(b) or elsewhere in this Agreement, neither Parent nor the Surviving Corporation shall, and Parent shall cause the Surviving Corporation not to, settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding for which indemnification may be sought under this Section 5.7(b) without the prior written consent of each Indemnitee involved in such Proceeding unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnitees from all liability arising out of such Proceeding and does not include an admission of fault or wrongdoing by any Indemnitee or such Indemnitee otherwise consents (in such Indemnitee’s sole and absolute discretion) in writing to such settlement, compromise, consent or termination.
(c) Prior to the Effective Time, the Company shall cooperate or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case, for a claims reporting or discovery period of at least six (6) years from and after the defense Effective Time with respect to any events occurring at or prior to the Effective Time (including any claim related to the transactions contemplated by this Agreement occurring at or prior to the Effective Time) from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of any such matterliability that are no less favorable than the coverage provided under the Company’s existing policies; provided, however, that the Company maximum aggregate annual premium for such insurance policies for any such year shall not be liable in excess of the maximum aggregate annual premium contemplated by the immediately following sentence. If the Company or the Surviving Corporation for any settlement effected without its written consent (which consent reason fails to obtain such “tail” insurance policies as of the Effective Time, there shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier no breach of this provision so long as (i) the Surviving Corporation shall continue to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date hereof with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies as of the date hereof, or (ii) Parent will cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s D&O Insurance as of the date hereof with comparable D&O Insurance that provides coverage for events occurring at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, that is no less favorable than the existing policy of the Company or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that neither Parent nor the Surviving Corporation shall be required to pay an annual premium for such insurance policies in excess of 300% of the annual premium paid by the Company for coverage for its last full fiscal year for such insurance; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. Notwithstanding anything to the contrary set forth in this Agreement, if an Indemnitee is a party to or is otherwise involved (including as a witness) in any Proceeding (arising before or as of the Effective Time) on or prior to the sixth (6th) anniversary of the Effective Time and (ii) the Liquidation Date, if availablewith respect to which such Indemnitee was entitled to indemnification or advancement of expenses or insurance pursuant to this Section 5.7, the current directors' and officers' liability insurance policies maintained by provisions of this Section 5.7 shall continue in effect with respect only to such Proceeding until the Company (provided that the Company may substitute therefor policies final disposition of at least the same coverage containing terms and conditions which are not less favorable)such Proceeding.
(d) The Indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7. The provisions of this Section 5.7 are intended to be for the benefit of each Indemnitee and his or her successors, heirs or representatives. The Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnitee in enforcing the indemnity and other obligations provided in this Section 5.7.
(e) The rights of each Indemnitee under this Section 5.7 shall be in addition to any rights such person may have under the Certificate of Incorporation, the Bylaws or the equivalent organizational or governing documents of the Surviving Corporation or any of its subsidiaries, or under any applicable Law or under any agreement of any Indemnitee with the Company or any of its subsidiaries.
(f) Notwithstanding anything contained in Section 8.1 or Section 8.8 to the contrary, this Section 5.7 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Corporation and its subsidiaries, and shall be enforceable by the Indemnitees and their successors, heirs or representatives. In the event that Parent or the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as applicable, shall assume succeed to the obligations set forth in this Section 55.7.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 2 contracts
Samples: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time Parent and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect Merger Sub agree that all rights to exculpation and indemnification for acts or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who omissions occurring at or prior to the time Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of the consummation current or former directors, officers or employees, as the case may be, of the Offer were directorsCompany or its Subsidiaries (the “Indemnified Parties”) as provided in the Company Certificate, officers, fiduciaries the Company Bylaws (or agents equivalent organizational documents of the CompanyCompany or any of its Subsidiaries or Affiliates) or in any agreement (a “Company Indemnity Agreement”), unless each as in effect on the date of this Agreement, shall survive the Offer and the Merger and shall continue in full force and effect in accordance with their terms. The Company has made available to Parent true and complete copies of all Company Indemnity Agreements. Parent and the Company shall, from and after the Acceptance Time, and, if after the Effective Time, the Surviving Entity shall (and Parent shall cause the Company or the Surviving Entity, as applicable, to) indemnify, defend and hold harmless, and advance expenses to Indemnified Parties with respect to all acts or omissions by them in their capacities as such modification shall be required by Lawat any time prior to the Effective Time, to the fullest extent provided by: (i) the Company Certificate, the Company Bylaws (or equivalent organizational documents of the Company or any of its Subsidiaries or affiliates) as in effect on the date of this Agreement; and (ii) any Company Indemnity Agreement between any such Indemnified Party on the one hand and the Company or any of its Subsidiaries on the other hand.
(b) The Company shallWithout limiting the provisions of Section 6.04(a), from and after the Effective Time, Parent will: (i) indemnify, defend and hold harmless to the fullest extent permitted under by applicable Law, indemnify each Indemnified Party from and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all any costs and or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages, penalties, liabilities and settlement amounts paid in settlement (including, in each case, any interest or assessments thereon) in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising to the extent such claim, action, suit, proceeding or investigation arises out of or pertaining to pertains to: (A) any action or omission occurring before or after alleged action or omission in such Indemnified Party’s capacity as a director, officer or employee of the date hereof. In Company or any of its Subsidiaries prior to the event Effective Time; or (B) the Merger, this Agreement and any transactions contemplated hereby and (ii) pay (within 30 days following any request for advancement) the expenses (including reasonable attorneys’ fees) of any Indemnified Party incurred in connection with any such claim, action, suit, proceeding or investigationinvestigation upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified, in each case, if such Indemnified Party is entitled to indemnification or advancement of expenses as of the date of this Agreement pursuant to the Company’s or any of its Subsidiary’s certificate of incorporation, bylaws or other similar governing documents or any applicable Company Indemnity Agreement. Notwithstanding the foregoing, the Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) Parent will provide, or cause the Surviving Entity to provide, for a period of not less than six years after the Effective Time, the Indemnified Parties who are insured under the Company’s directors’ and officers’ insurance and indemnification policy with an insurance and indemnification policy (from either (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be Company’s existing insurance carrier or (ii) an insurance carrier that is reasonably satisfactory to the Company, promptly after statements therefor are received and ) that provides coverage for events occurring at or prior to the Effective Time (iithe “D&O Insurance”) that is no less favorable than the Company shall cooperate in existing policy of the defense of any such matterCompany; provided, however, that Parent and the Company Surviving Entity shall not be liable required to pay an annual premium for the D&O Insurance in excess of 300% of the annual premium paid as of the date hereof by the Company for such insurance; provided, further, that if the annual premiums of such insurance coverage at any settlement effected without its written consent time exceed such amount, Parent or the Surviving Entity shall be obligated to obtain a policy (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of from either (i) the sixth anniversary of the Effective Time and Company’s existing insurance carrier or (ii) an insurance carrier that is reasonably satisfactory to the Liquidation DateCompany) with the greatest coverage available for a cost not exceeding such amount. Notwithstanding anything to the contrary in this Agreement, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies and at Parent’s request shall, prior to the Effective Time, purchase a “tail” directors’ and officers’ insurance and indemnification policy, provided that payment for each year of at least insurance coverage provided by such “tail” directors’ and officers’ insurance policy shall not exceed 300% of the same coverage containing terms annual premium paid as of the date hereof by the Company. Any such “tail” directors’ and conditions which are not less favorable)officers’ insurance and indemnification policy will satisfy Parent’s obligation under this Section 6.04(c) to provide D&O Insurance.
(d) The Indemnified Parties to whom this Section 6.04 applies shall be third party beneficiaries of this Section 6.04. The provisions of this Section 6.04 are intended to be for the benefit of each Indemnified Party and his or her successors, heirs and representatives.
(e) Notwithstanding anything herein to the contrary, this Section 6.04 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Entity and its Subsidiaries, and shall be enforceable by the Indemnified Parties and their successors, heirs or representatives. In the event that Parent, the Company Surviving Entity or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that such other person or the successors and assigns of Parent or the Company Surviving Entity as the case may be shall assume the succeed to its obligations set forth in this Section 56.04.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Merger Agreement (Dollar Thrifty Automotive Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Except to the earlier of (i) extent required by law, until the sixth anniversary of the Effective Time and (ii) Closing, Buyer will not take any action so as to amend, modify or repeal the Liquidation Date, provisions for indemnification of directors or officers contained in the By-laws Organizational Documents of the Company and/or its Subsidiaries in such a manner as would adversely affect the rights of any individual who shall contain provisions no less favorable with respect to indemnification have served as a director or the liability of directors than are set forth in Article VII, Section 7.2 officer of the By-laws Company or any of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or its Subsidiaries prior to the time Closing to be indemnified by such corporations in respect of their serving in such capacities prior to the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by LawClosing.
(b) The Company shall, to From and after the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectivelyClosing, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company Buyer shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to cause the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) Closing, to cause to be maintained in effect, to the Liquidation Date, if extent available, the current policies of directors' ’ and officers' ’ liability insurance policies maintained by the Company and its Subsidiaries as of the date hereof (provided that the Company may substitute therefor or policies of at least the same coverage and amounts containing terms that are no less favorable to the insured parties) with respect to claims arising from facts or events that occurred on or prior to the Closing; provided that in no event shall the Buyer be obligated to cause the Company to expend in order to maintain or procure insurance coverage pursuant to this paragraph any amount per annum in excess of two hundred percent (200%) of the aggregate premiums payable by the Company and conditions which are not less favorable)its Subsidiaries in 2004 for such purpose.
(dc) In From and after the event Closing, the Seller Parent shall not, nor shall it permit any of its Subsidiaries to, bring or continue legal proceedings against any director or officer of the Company and/or any of its Subsidiaries benefiting from the agreements in Section 5.5(a) or (b), such that any such person could reasonably have a claim against any insurer in respect of the insurance policies described in Section 5.5(b) or against the Company or any of its successors Subsidiaries (whether by way of indemnity, contract, operation of law or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5otherwise).
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Midamerican Energy Holdings Co /New/)
Directors’ and Officers’ Indemnification and Insurance. 7.6.1 FB Bancorp and First Business Bank shall permit 1st Pacific Bancorp and 1st Pacific Bank purchase a policy of officers’ and directors’ liability insurance with terms comparable to the policy currently in effect which provides coverage (athe “Tail Coverage”) For a period ending on the earlier of for thirty-six (i36) the sixth anniversary of months from the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification for claims arising from facts or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner events that would affect adversely the rights thereunder of individuals who at or occurred prior to the time of Effective Time (the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees“Tail Policy”), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company total cost of the premiums for such Tail Policy shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)exceed $100,000.
(c) The Company shall maintain until the earlier 7.6.2 For a period of (i) the sixth anniversary of three years after the Effective Time Time, FB Bancorp shall, and (ii) shall cause Surviving Corporation, Surviving Bank Holding Company, First Business Bank, Surviving Bank or any other entity resulting from the Liquidation Datetransactions contemplated by this Agreement and the several agreements referenced herein and appended hereto to maintain and preserve the rights to indemnification of officers and directors provided for in the Articles of Incorporation and bylaws of 1st Pacific Bancorp and 1st Pacific Bank as in effect on the date hereof with respect to indemnification for liabilities and claims arising out of acts, if availableomissions, events, matters or circumstances occurring or existing prior to the Effective Time, including, without limitation, the current directors' Merger and officers' liability insurance policies maintained the other transactions contemplated by this Agreement, to the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which extent such rights to indemnification are not less favorable)in excess of that permitted by applicable state or federal laws or Regulatory Authorities.
(d) 7.6.3 The provisions of this Section 7.6 are intended to be for the benefit of, and shall be enforceable by, each director or officer of 1st Pacific Bancorp and 1st Pacific Bank and his or her heirs and representatives.
7.6.4 In the event the Company that either FB Bancorp, Surviving Corporation, First Business Bank or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation bank or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company First Business Bank shall assume the obligations set forth in this Section 57.6.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation DateEmclaire shall indemnify, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify defend and hold harmless each present and former directorperson who is now, officeror who has been at any time before the date hereof or who becomes before the Effective Time, fiduciary and agent an officer or director of UA Bank (the Company and each of its subsidiaries (collectively, the "“Indemnified Parties"”) against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, costs, expenses (including attorney’s fees), liabilities and or judgments or amounts that are paid in settlement amounts paid (which settlement shall require the prior written consent of Emclaire, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or investigativeis threatened to be made, a party or witness in whole or in part or arising in whole or in part out of the fact that such person is or pertaining was a director, officer or employee of UA Bank if such Claim pertains to any action matter of fact arising, existing or omission occurring at or before the Effective Time (including, without limitation, the Mergers and the other transactions contemplated hereby), regardless of whether such Claim is asserted or after claimed before, or after, the date hereofEffective Time, to the fullest extent as would have been permitted by UA Bank under Pennsylvania law and under UA Bank’s Articles of Incorporation and Bylaws. In Emclaire shall pay expenses in advance of the event final disposition of any such claimaction or proceeding to each Indemnified Party to the fullest extent as would have been permitted by UA Bank under Pennsylvania law and under UA Bank’s Articles of Incorporation and Bylaws, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses upon receipt of counsel selected by the Indemnified Parties, which counsel an undertaking to repay such advance payments if he shall be reasonably satisfactory adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 6.09 upon learning of any Claim, shall notify Emclaire (but the failure so to notify Emclaire shall not relieve it from any liability which it may have under this Section 6.09, except to the Company, promptly after statements therefor are received extent such failure materially prejudices Emclaire) and (ii) shall deliver to Emclaire the Company shall cooperate undertaking referred to in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)previous sentence.
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(db) In the event the Company that either Emclaire or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation bank or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Emclaire shall assume the obligations set forth in this Section 56.09.
(ec) Purchaser Emclaire shall use all maintain, or shall cause Farmers National to maintain, in effect for up to six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of UA Bank (provided, that Emclaire may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable to the officers and directors of UA Bank) with respect to matters occurring at or prior to the Effective Time; provided, however, that in no event shall Emclaire be required to expend pursuant to this Section 6.09 an aggregate amount to exceed $35,000 with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the aggregate premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Emclaire shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, UA Bank agrees in order for Emclaire to fulfill its agreement to provide directors and officers liability insurance policies for up to six years to provide such insurer or substitute insurer with such reasonable efforts and customary representations as such insurer may request with respect to cause the Company to perform all reporting of its any prior claims.
(d) The obligations of Emclaire provided under this Section 5.
(f) This Section 5 is 6.09 are intended for the benefit of to be enforceable against Emclaire directly by the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofbinding on all respective successors and permitted assigns of Emclaire.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary The By-Laws of the Effective Time and (ii) Surviving Corporation shall contain the Liquidation Daterespective provisions that are set forth, the By-laws as of the Company shall contain provisions no less favorable with respect to indemnification or the liability date of directors than are set forth this Agreement, in Article VII, Section 7.2 IX of the By-laws Laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company After the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted set forth under applicable LawArticle IX of the Company By-laws, indemnify and hold harmless harmless, each present current and former director, officer, fiduciary and agent director or officer of the Company and each Subsidiary of its subsidiaries the Company and each such person who served at the request of the Company or any Subsidiary of the Company as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the "Indemnified Parties") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminaladministrative, administrative criminal or investigative, arising out of or pertaining to any action or omission in their capacities as officers or directors, in each case occurring before or after the date hereofEffective Time (including the transactions contemplated by this Agreement. In Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of one counsel selected by the any Indemnified PartiesParty, which counsel shall be reasonably satisfactory to the CompanyCompany or to Parent and the Surviving Corporation, as the case may be, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and (ii) the Company and Parent and the Surviving Corporation shall reasonably cooperate in the defense of any such matter; provided, however, that none of the Company Company, Parent or the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed). In the event that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims.
(c) The Company shall maintain until the earlier For a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation DateTime, if available, Parent shall cause to be maintained in effect the current directors' directors and officers' officers liability insurance policies maintained by the Company (provided that coverage limits in the Company aggregate for the entire six year period are not less than the current annual limits, and provided further that Parent may substitute therefor policies reasonably satisfactory to the Indemnified Parties of at least the same coverage containing with other terms and conditions which that are not no less favorableadvantageous to the Indemnified Parties) with respect to claims arising from facts or events that occurred prior to the Effective Time; provided, however, that in no event shall parent be required to expend, pursuant to this Section 6.05(c), more than an amount per year equal to 200% of current annual premiums paid by the Company for such insurance; provided further, however, that if the premiums for such coverage exceed such 37 39 amount, Parent or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 200% of the current annual premiums spent by the Company for its fiscal year ending December 31, 1999.
(d) In the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company shall assume Surviving Corporation, as the case may be, honor the indemnification obligations set forth in this Section 56.05.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Merger Agreement (SDL Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Articles of (i) the sixth anniversary Incorporation and Bylaws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VII of the By-laws Bylaws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawby law, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall indemnify and hold harmless, each present current and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); PROVIDED FURTHER that neither the Company nor the Surviving Corporation shall be obligated pursuant to this Section 6.06(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and PROVIDED FURTHER that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use its reasonable best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for three years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which that are not materially less favorable) with respect to matters occurring prior to the Effective Time; PROVIDED, HOWEVER, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.06(c) more than an amount per year equal to 150% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be approximately U.S. $72,500 in the aggregate).
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or, at the Parent's option, the Parent, shall assume the obligations set forth in this Section 56.06.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Merger Agreement (Aquapenn Spring Water Company Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Without limiting any additional rights under any existing agreement or arrangement, from the earlier of (i) Effective Time through the sixth anniversary of the date on which the Effective Time and (ii) the Liquidation Dateoccurs, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the CompanyParent Group shall, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely cause the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable LawSurviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former director, officer, fiduciary officer and agent director of the Company and each of its subsidiaries Subsidiaries (collectively, the "Indemnified Parties") ), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses (expenses, including attorneys' feesfees and disbursements (collectively, "Losses"), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that an Indemnified Party is or was an officer or director of the Company or any action of its Subsidiaries or omission (ii) matters existing or occurring before at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the date hereofEffective Time, to the fullest extent permitted under applicable law. In the event of any such claim, action, suit, proceeding or investigation, (iA) each Indemnified Party will be entitled to advancement of expenses incurred in the Company shall pay defense of any claim, action, suit, proceeding or investigation from the reasonable fees and expenses Surviving Corporation within ten (10) Business Days of counsel selected receipt by the Parent Group or the Surviving Corporation from the Indemnified PartiesParty of a request therefor, which counsel (B) neither Parent Group nor the Surviving Corporation shall be reasonably satisfactory settle, compromise or consent to the Companyentry of any judgment in any proceeding or threatened action, promptly after statements therefor are received suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (iiC) each of the Company Surviving Corporation and the Indemnified Party shall cooperate in the defense of any such matter. The Parent Group or the Surviving Corporation shall have the right, but not the obligation, to assume and control the defense of any threatened or actual claim, action, suit, proceeding or investigation relating to any acts or omissions covered under this Section 5.3 unless there is a conflict of interest between the Parent Group and the Surviving Corporation, on the one hand, and the applicable Indemnified Party, on the other; provided, howeverthat, that prior to any such assumption and control, the party assuming control of such defense shall provide to the applicable Indemnified Party a written undertaking reaffirming its obligations hereunder, under the organizational documents of the Company and the Surviving Corporation to indemnify such party against any and all Losses relating thereto or resulting therefrom.
(b) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are set forth in the Company's Certificate of Incorporation and Bylaws, which provisions shall not be liable amended, repealed or otherwise modified for a period of six years from the Effective Time in any settlement effected without its written consent (which consent shall not be unreasonably withheld)manner that would adversely affect the rights thereunder of any such individuals.
(c) The Prior to the Effective Time, the Company shall maintain until and, if the earlier Company is unable to, the Parent Group shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the extension of (i) the sixth anniversary directors' and officers' liability coverage of the Effective Time Company's existing directors' and officers' insurance policies, and (ii) the Liquidation DateCompany's existing fiduciary liability insurance policies, if available, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to directors' and officers' liability insurance policies maintained by the Company and fiduciary liability insurance (provided collectively, "D&O Insurance") with terms, conditions, retentions and limits of liability that the Company may substitute therefor policies of are at least as favorable, in the same coverage containing terms and conditions which are not less favorable).
(d) In aggregate, as the event Company's existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the "Maximum Premium"), then the Company or the Parent Group, as applicable, shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. If the Company and the Surviving Corporation for any reason fail to obtain such "tail" insurance policies as of the Effective Time, the Surviving Corporation shall, and the Parent Group shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable, in the aggregate, as provided in the Company's existing policies as of the date hereof, or the Surviving Corporation shall, and the Parent Group shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are at least as favorable, in the aggregate, as provided in the Company's existing policies as of the date hereof; provided, however, in each case, that, if the annual premium for such insurance shall exceed the Maximum Premium, then the Company or the Parent Group, as applicable, shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions and benefits of this Section 5.3 shall continue in full effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise, including, but not limited to, those under the Indemnification Agreements.
(f) In the event that the Surviving Corporation or the Parent 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) transfers or conveys all or substantially all a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation or the Parent Group, as the case may be, shall assume succeed to the obligations set forth in this Section 55.3.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Merger Agreement (Icahn Carl C)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the The By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 XI of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' ------------------- fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, -------- however, that neither the Company nor the Surviving Corporation shall not be liable ------- for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided further that neither the Company nor the -------- ------- Surviving Corporation shall be obligated pursuant to this Section 5.05(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided further that, in the event that any claim for indemnification is -------- ------- asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use its reasonable best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for three years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving -------- ------- Corporation be required to expend pursuant to this Section 5.05(c) more than 150% of the current annual premiums.
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in this Section 55.05.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the CompanyParent shall, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely cause the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Surviving Company shallto, to the fullest extent the Company would be permitted under applicable Lawto do so by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify indemnify, defend and hold harmless each (and promptly advance expenses from time to time as incurred to the fullest extent permitted by Law, provided, that the Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances, if it is ultimately determined that such Person is not entitled to indemnification) the present and former directors and officers of the Company or any of its Subsidiaries, any Person acting as director, officer, fiduciary and trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) at the request of the Company and (each of its subsidiaries (collectively, the an "Indemnified PartiesParty") from and against any and all costs and or expenses (including attorneys' fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding actual or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time.
(ib) Subject to the following sentence, prior to the Effective Time the Company shall, in consultation with Parent, purchase a six (6) year extended reporting period endorsement with respect to the Current Insurance (a "Reporting Tail Endorsement"), and the Surviving Company shall pay maintain this endorsement in full force and effect for its full term; provided that the reasonable fees and expenses aggregate cost for such Reporting Tail Endorsement does not exceed 300% of counsel selected the current annual premium paid by the Indemnified PartiesCompany. To the extent purchased after the date of this Agreement and prior to the Effective Time, which counsel the Reporting Tail Endorsement shall be placed through such broker(s) and with such insurance carriers as may be specified by Parent and as are reasonably satisfactory acceptable to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain until in effect the earlier provisions in its certificate of (i) incorporation and bylaws to the sixth anniversary extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of Indemnified Parties, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and the Company Bylaws in effect on the date of this Agreement, to the fullest extent permitted from time to time under applicable Law, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by applicable Law that would enlarge the scope of the Effective Time and (ii) the Liquidation Date, if available, the current directorsIndemnified Parties' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable)indemnification rights thereunder.
(d) In If Parent or the event the Surviving Company or any of its their respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, Parent shall cause proper provision shall provisions to be made prior to the consummation of any transaction of the type described in clause (i) or clause (ii) of this sentence so that the successors and assigns of Parent or the Company Surviving Company, as the case may be, shall assume all of the obligations set forth in this Section 56.8.
(e) Purchaser From and after the Effective Time, Parent and the Surviving Company shall use all reasonable efforts to cause not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.8(e) of the Company Disclosure Letter between the Company or any Subsidiary and any of the Indemnified Parties, or any such provisions contained in the Surviving Company certificate of incorporation or bylaws to perform all of its obligations under this Section 5the extent such provision applies to Indemnified Parties.
(f) This Section 5 6.8 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Company. The obligations of Parent under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Company, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification, then Parent or the Surviving Company shall pay such Indemnified Party's costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Company. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company's Subsidiaries, including the Surviving Company, or under any applicable Contracts, insurance policies or Laws.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its respective Subsidiaries for any of their respective heirsdirectors, executors officers or other employees, it being understood and personal representatives and shall be enforceable by them as third party beneficiaries hereofagreed that the indemnification provided for in this Section 6.8 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Cigna Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VII of the By-laws Certificate of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would materially and adversely affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereofhereof (a "Claim"), provided, however, that no Indemnified Party shall be entitled to payment of any amount in respect of any Claim arising from willful misconduct, self dealing or the commission of an intentional tort by such Indemnified Person. In the event of any such claim, action, suit, proceeding or investigation, Parent or the Surviving Corporation, as the case may be, shall assume the defense thereof, and neither Parent nor the Surviving Corporation will be liable to such Indemnified Parties for any legal expenses of other counsel incurred subsequent to such assumption by such Indemnified Parties in connection with the defense thereof, provided that (i) the Company Parent and the Surviving Corporation shall pay have acknowledged in writing that their indemnity obligations hereunder are applicable in respect of the reasonable fees matter in issue unless and expenses until a court of counsel selected competent jurisdiction ultimately determines, and such determination becomes final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by the Indemnified Partieslaw, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) no settlement shall be effected without the Company written consent of an Indemnified Party which does not include a full and unconditional release of such Indemnified Party and (iii) the Indemnified Parties shall cooperate in the defense of any such matter; provided. None of the Company, however, that Parent or the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). None of the Company, Parent nor the Surviving Corporation shall be obligated pursuant to this Section 6.7(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties (who shall in any event be reasonably acceptable to the Parent) in any single action except to the extent that the named parties to any such proceeding include both the Indemnified Party and the Company or Parent, or their respective successors, and the representation of such parties by the same counsel would be proscribed under applicable standards of professional conduct and provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Parent and the Surviving Corporation shall use their respective reasonable best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that Parent and the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable).
) with respect to matters occurring prior to the Effective Time; provided, that (d1) In if the event existing policies expire, are terminated or canceled during such period Parent or the Company Surviving Corporation will use its reasonable best efforts to obtain substantially similar policies and (2) Parent or any of its successors or assigns (i) consolidates with or merges into any other person and the Surviving Corporation shall not be the continuing or surviving corporation or entity required to spend as an annual premium therefor an amount in excess of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5$280,000.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation and Bylaws of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 XIII of the By-laws Bylaws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior any time from and after the date of this Agreement and to and including the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the CompanyCompany in respect of acts or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification shall be required by Lawlaw. From and after the Purchaser's Election Date, the Company shall not amend, repeal or otherwise modify the indemnification and advancement of expenses provisions of Article XIII of the Bylaws of the Company or the indemnification or advancement of expenses provisions in the Constituent Documents of any of the Subsidiaries in any manner that would adversely affect the rights thereunder of individuals who at any time from and after the date of this Agreement and to and including the Effective Time were directors, officers, employees, fiduciaries or agents of the Company or any of the Subsidiaries in respect of acts or omissions occurring at or prior to the Effective Time (including, without limitation, the matters contemplated by this Agreement), unless such modification is required by law.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw, indemnify and hold harmless harmless, and, after the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action act or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.or
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The certificate of (i) the sixth anniversary of the Effective Time incorporation and (ii) the Liquidation Date, the Byby-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 the certificate of the By-incorporation and by- laws of STC on the Companydate hereof, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the CompanySTC, unless such modification shall be required by Lawlaw.
(b) The Company STC shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger shall become effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company STC and each of its subsidiaries STC Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) STC or the Company Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to STC or the CompanySurviving Corporation, promptly after statements therefor are received and (ii) STC and the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither STC nor the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); provided further that neither STC nor the Surviving Corporation shall be obligated pursuant to this Section 7.04(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action; provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use all reasonable efforts to maintain until the earlier of (i) the sixth anniversary of in effect for three years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company STC (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 7.04(c) more than an amount per year equal to 125% of current annual premiums paid by STC for such insurance.
(d) In the event STC or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of STC or the Company Surviving Corporation, as the case may be, or at CGI's option, CGI, shall assume the obligations set forth in this Section 57.04.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Somatix Therapy Corporation)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From the Effective Time and (ii) through the Liquidation Date, the By-laws expiration of the Company shall contain provisions no less favorable with respect directors’ and officers’ liability policy referred to indemnification or the liability of directors than are set forth in Article VIISection 5.6(b) below, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company NFP shall, to or shall cause the fullest extent permitted under applicable LawSurviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former director, officer, fiduciary and agent officer or director of the Company and each of its subsidiaries (collectively, the "“Section 5.6 Indemnified Parties") ”), against all costs and expenses (including attorneys' fees)claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damagesincluding, liabilities without limitation, attorneys’ fees and settlement amounts paid disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Section 5.6 Indemnified Party is or was an officer or director of the Company or any action of its subsidiaries or omission was, prior to the Effective Time serving at the request of any such party as a director, officer, employee, fiduciary or agent of another corporation, partnership, trust or other enterprise and (ii) matters existing or occurring before at or prior to the Effective Time (including, without limitation, this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the date hereofEffective Time, to the fullest extent permitted under applicable law. In Each Section 5.6 Indemnified Party will be entitled to advancement of expenses incurred in the event defense of any such claim, action, suit, proceeding or investigationinvestigation from NFP or the Surviving Corporation within ten business days of receipt by NFP from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, (i) if and only to the Company shall pay the reasonable fees and expenses of counsel selected extent required by the Indemnified PartiesDGCL, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any repay such matter; provided, however, advances if it is ultimately determined that the Company shall such person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)entitled to indemnification.
(cb) The Company Subject to the second and third sentences of this Section 5.6(b), NFP shall, or shall maintain until cause the earlier of (i) Surviving Corporation to maintain, at no expense to the sixth anniversary of beneficiaries, in effect for six years from the Effective Time and (ii) the Liquidation Date, if available, the current policies of the directors' ’ and officers' ’ liability insurance policies maintained by the Company (provided that NFP or the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorableadvantageous to any beneficiary thereof) with respect to matters existing or occurring at or prior to the Effective Time; provided, however, that to the extent cost of such coverage is in excess of 200% of the Company’s current annual premium, NFP shall pay 200% of such current annual premium and the Company shall pay such excess amount prior to the Closing Date. In connection with the foregoing, the Company shall take such actions and pay such amounts to continue the Company’s directors’ and officers’ liability insurance policy (or obtain a replacement thereof) prior to the Closing for such six-year period; it being understood that any amounts incurred or owed in the future with respect to such policy in excess of 200% of the current annual premium shall, to the exent not paid prior to Closing, be deemed for the purposes of Section 1.13 a Current Liability to be calculated in the determination of working capital for the purposes of Section 1.13. In the event that the Company is unable to continue such directors’ and officers’ liability coverage (or obtain a replacement thereof), NFP’s and the Surviving Corporation’s only obligations with respect to this Section 5.6(b), shall be to maintain the current directors’ and officers’ liability policy (or obtain a replacement thereof) for three years from the Effective Time at a cost of no more than 200% of the current annual premium.
(c) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Section 5.6 Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(d) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation shall assume succeed to the obligations set forth in this Section 55.6.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Merger Agreement (National Financial Partners Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The certificate of (i) the sixth anniversary of the Effective Time incorporation and (ii) the Liquidation Date, the Byby-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 the certificate of the By-incorporation and by- laws of STC on the Companydate hereof, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the CompanySTC, unless such modification shall be required by Lawlaw.
(b) The Company STC shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger shall become effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company STC and each of its subsidiaries STC Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) STC or the Company Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to STC or the CompanySurviving Corporation, promptly after statements therefor are received and (ii) STC and the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither STC nor the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); provided further that neither STC nor the Surviving Corporation shall be obligated pursuant to this Section 7.04(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action; provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use all reasonable efforts to maintain until the earlier of (i) the sixth anniversary of in effect for three years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company STC (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 7.04(c) more than an amount per year equal to 125% of current annual premiums paid by STC for such insurance.
(d) In the event STC or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of STC or the Company Surviving Corporation, as the case may be, or at CGI's option, CGI, shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.7.04. 31
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Articles of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 10 of the By-laws Amended and Restated Articles of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shallParent shall cause the Surviving Corporation, to the fullest extent permitted under applicable Law, indemnify to indemnify, defend and hold harmless harmless, each present and former director, officer, fiduciary and agent officer or employee of the Company and each or any of its subsidiaries Subsidiaries (collectively, the "“Indemnified Parties"”) against all any costs and or expenses (including attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, (i) arising out of or pertaining to the Transactions; or (ii) otherwise with respect to any action acts or omission omissions occurring before at or prior to the Effective Time, to the same extent as provided in the Company’s Articles of Incorporation or By-laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (iA) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received received; and (iiB) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, further, that neither the Company nor the Surviving Corporation shall be obligated pursuant to this Section 6.8(b) to pay the fees and expenses of more than one (1) counsel for all Indemnified Parties in any single action except to the extent that two (2) or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided, further, that, in the event that any claim for indemnification is asserted or made within such six (6)-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use its best efforts to maintain until the earlier of in effect for six (i6) the sixth anniversary of years from the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' ’ and officers' ’ liability insurance policies maintained by the Company (provided that the Company may substitute therefor Company, or instead, policies of at least the same coverage containing terms and conditions which that are not materially less favorable, with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to Section 6.8(b) more than an amount per year equal to 200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $100,000 per annum in the aggregate).
(d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary The By-Laws of the Effective Time and (ii) Surviving Corporation shall contain the Liquidation Daterespective provisions that are set forth, the By-laws as of the Company shall contain provisions no less favorable with respect to indemnification or the liability date of directors than are set forth this Agreement, in Article VII, Section 7.2 of the By-laws Sixth of the Company's Amended Certificate of Incorporation, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company After the Effective Time, Buyer and the Surviving Corporation shall, to the fullest extent permitted set forth under applicable LawArticle Sixth of the Company's Amended Certificate of Incorporation, indemnify and hold harmless each present current and former director, officer, fiduciary and agent director or officer of the Company and each Subsidiary of its subsidiaries the Company and each such person who served at the request of the Company or any Subsidiary of the Company as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, for purposes of this Section 11.7 only, the "Indemnified PartiesINDEMNIFIED PARTIES") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminaladministrative, administrative criminal or investigative, arising out of or pertaining to any action or omission in their capacities as officers or directors, in each case occurring before or after the date hereofEffective Time. In Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) the Company Buyer and the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of one counsel selected by the any Indemnified PartiesParty, which counsel shall be reasonably satisfactory to the CompanyBuyer and the Surviving Corporation, as the case may be, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and (ii) the Company Buyer and the Surviving Corporation shall reasonably cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that neither the Company Buyer nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed). In the event that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims.
(c) The Company shall maintain until the earlier For a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation DateTime, if available, Buyer shall cause to be maintained in effect the current directors' directors and officers' officers liability insurance policies maintained by the Company (provided that coverage limits in the Company aggregate for the entire six year period are not less than the current annual limits, and provided further that Buyer, with consent of the Indemnified Parties, which consent shall not be unreasonably withheld, may substitute therefor policies of at least the same coverage containing with other terms and conditions which that are not no less favorableadvantageous to the Indemnified Parties) with respect to claims arising from facts or events that occurred prior to the Effective Time; provided, however, that in no event shall Buyer be required to expend, pursuant to this Section 11.7(c), more than an amount per year equal to 150% of current annual premiums paid by the Company for such insurance; PROVIDED, FURTHER, however, that if the premiums for such coverage exceed such amount, Buyer or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 150% of the current annual premiums spent by the Company for its fiscal year ending December 31, 2000.
(d) In the event Buyer or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer or the Company shall assume Surviving Corporation, as the case may be, honor the indemnification obligations set forth in this Section 511.7.
(e) Purchaser Notwithstanding the foregoing, nothing in Section 11.7 shall use all reasonable efforts to cause limit the Company to perform all Buyer's and the Merger Sub's remedies under Section 16.1 and 16.2 of its obligations under this Section 5Agreement or otherwise and arising in connection with this Agreement.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Samples: Merger Agreement (Ibasis Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Except to the earlier of (i) extent required by law, until the sixth second anniversary of the Effective Time, GMI will not take any action so as to amend, modify or repeal the provisions for indemnification of directors, officers, stockholders, employees or agents contained in the Certificate of Incorporation or bylaws of the Surviving Corporation (which as of the Effective Time and (iishall be no less favorable to such individuals than those maintained by the Company on the date hereof) in such a manner as would adversely affect the Liquidation Daterights of any individual who shall have served as a director, the By-laws officer, stockholder, employee or agent of the Company prior to the Effective Time (each an "Indemnified Party") to be indemnified by the Company in respect of their serving in such capacities prior to the Effective Time. GMI shall contain provisions no less favorable with respect to indemnification indemnify all directors, officers, employees, and stockholders who are officers or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws Company against any liability or losses (including reasonable attorney's fees for counsel who are reasonably acceptable to GMI) any of them may incur because of any claim brought against them prior to within two years from the Effective Time as officers, directors, employees, agents or stockholders of the Company, and such provisions shall not be amendedin connection therewith, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, subject to relevant state law and the fullest extent permitted under applicable Law, indemnify Certificate of Incorporation and hold harmless each present and former director, officer, fiduciary and agent Bylaws of the Company and each of its subsidiaries (collectivelythe Surviving Corporation, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining advance reasonable attorney's fees to any action or omission occurring before or after the date hereof. In the event of them to defend any such claim; provided, actionhowever, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel that GMI shall be reasonably satisfactory entitled to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; and provided, howeverfurther, that the Company GMI shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company ; and provided, further, that GMI shall maintain until not be obligated pursuant to this Section to pay the earlier fees and disbursements of (i) more than one counsel for all Indemnified Parties in any single action, except to the sixth anniversary extent that, in the opinion of counsel for the Effective Time and (ii) Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the Liquidation Date, if available, the current outcome of such action. GMI may obtain directors' and officers' liability insurance covering its obligations under this section.
(b) GMI and the Surviving Corporation shall maintain, until April 5, 2001, the policies of directors' and officers' liability insurance maintained by the Company as of the date hereof (provided that the Company may substitute therefor or policies of at least the same coverage and amounts containing terms and conditions which that are not no less favorable)advantageous to the insured parties) with respect to claims arising from facts or events that occurred on or prior to the Effective Time.
(dc) In the event the Company or any The provisions of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts are intended to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended be for the benefit of the Indemnified Parties and their respective heirsof, executors and personal representatives and shall be enforceable by them as third by, each Indemnified Party and each party beneficiaries hereofentitled to insurance coverage under paragraph (b) above, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights an Indemnified Party may have under the Certificate of Incorporation or Bylaws of the Surviving Corporation, under the DGCL or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time It is understood and (ii) the Liquidation Date, the By-laws of agreed that the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Companyindemnify and hold harmless, and such provisions after the Effective Time, the Surviving Corporation and Parent shall not be amendedindemnify and hold harmless, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior as and to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest full extent permitted under by applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") Party against all costs and expenses (including attorneys' fees), judgments, fines, any losses, claims, damages, liabilities liabilities, costs, expenses (including reasonable attorneys’ fees and settlement expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the date hereofEffective Time), whether civilthe Company, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or and the Surviving Corporation and Parent after the Effective Time, shall indemnify each Indemnified Party pursuant to (x) the obligations of the Company or any Subsidiary of the Company pursuant to the indemnification agreement in effect on the date hereofof this Agreement between the Company or any Subsidiary of the Company and such Indemnified Party, and (y) for a period of six years from the Effective Time and to the fullest extent permitted by applicable Law, the obligations of the Company to indemnify the Indemnified Parties in accordance with the terms of the Certificate of Incorporation and By-laws of the Company in effect immediately prior to the Effective Time. In the event Any Indemnified Party wishing to claim indemnification under this Section 6.6(a), upon learning of any such claim, action, suit, proceeding or investigation, (i) shall promptly notify the Company and, after the Effective Time, the Surviving Corporation and Parent thereof; provided that the failure to so notify shall pay not affect the reasonable fees and expenses obligations of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, the Surviving Corporation and Parent except to the extent, if any, such failure to promptly after statements therefor are received notify materially prejudices such party.
(b) The parties hereto agree that all rights to indemnification or exculpation existing in favor of, and (ii) all limitations on the personal liability of, each present and former director, officer, employee, fiduciary and agent of the Company shall cooperate and the Subsidiaries provided for in the defense respective charters or bylaws (or other applicable organizational documents) or otherwise in effect as of any such matterthe date hereof shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a “Claim”) asserted or made within such period shall continue until the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)disposition of such Claim.
(c) The Prior to the Effective Time, the Company shall maintain until purchase a non-cancelable extended reporting period endorsement under the earlier of (i) Company’s existing directors’ and officers’ liability insurance coverage for the sixth anniversary of Company’s directors and officers in the same form as presently maintained by the Company, which shall provide such directors and officers with coverage for six years following the Effective Time (or, in the case of any Claim made within such period until the disposition of such Claim), of not less than the existing coverage under, and (ii) the Liquidation Date, if availablehave other terms not less favorable to, the current insured persons than the directors' ’ and officers' ’ liability insurance policies coverage presently maintained by the Company (provided that Company; at a premium not to exceed $250,000 less the Company may substitute therefor policies credit of at least the same coverage containing terms and conditions which are not less favorable)any unearned premium.
(d) In The obligations under this Section 6.6 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.6 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.6 applies shall be third party beneficiaries of this Section 6.6 and shall be entitled to enforce the covenants contained herein).
(e) After the Effective Time, in the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Company shall Surviving Corporation, as the case may be, assume the obligations set forth in this Section 56.6.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the CompanySurviving Corporation shall, and such provisions Parent shall not be amended, repealed or otherwise modified in any manner that would affect adversely cause the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shallSurviving Corporation, to the fullest greatest extent permitted under applicable Lawby Law (including to the greatest extent authorized or permitted by any amendments to or replacements of the DGCL adopted on or after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify and hold harmless each (and advance reasonable expenses as incurred to the greatest extent permitted by Law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances, if it is ultimately determined that such Person is not entitled to indemnification) the present and former director(and any individuals who may become prior to the Effective Time) officers, officer, fiduciary directors and agent employees of the Company and each of its subsidiaries the Company Subsidiaries (collectively, the "“Indemnified Parties"”) against any and all costs and or expenses (including reasonable attorneys' fees’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding actual or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to have occurred, prior to or at the Effective Time, including the approval of this Agreement, the Merger or the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement, whether asserted or claimed prior to, at or after the Effective Time.
(ib) For a period of six (6) years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate Subsidiaries or cause to be provided substitute policies or purchase or cause the Surviving Corporation to purchase, a “tail policy,” in either case of at least the same coverage and amounts containing terms, conditions, retentions and limits of liability that are not less advantageous in the defense of any aggregate than such matterpolicy with respect to circumstances, developments or matters in existence, or acts or omissions occurring or alleged to have occurred, prior to or at the Effective Time; provided, however, that after the Company Effective Time, Parent shall not be liable for required to pay with respect to such insurance policies in respect of any settlement effected without its written consent one (1) policy year annual premiums in excess of 250% of the last annual premium paid by the Company prior to the date hereof (which consent annual premium the Company represents and warrants is set forth on Section 6.9(b) of the Company Disclosure Schedule) in respect of the coverage required to be obtained pursuant hereto, but in such case shall not purchase as much coverage as reasonably practicable for such amount; provided, further, that if the Surviving Corporation purchases a “tail policy” and the coverage thereunder costs more than 250% of such last annual premium (the cost of such tail measured for these purposes by reference to 1/6th the premium paid therefor), the Surviving Corporation shall purchase the maximum amount of coverage that can be unreasonably withheldobtained for 250% of such last annual premium (the cost of such tail measured for these purposes by reference to 1/6th the premium paid therefor).
(c) The Company shall maintain until If the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable).
(d) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision provisions shall be made prior to any such transaction being consummated so that the successors and assigns of the Company Surviving Corporation shall assume all of the obligations set forth in this Section 56.9.
(d) From and after the Effective Time, until the sixth (6th) year anniversary thereof, the Parent and the Surviving Corporation agree not to, directly or indirectly, amend, modify, limit or terminate the advancement of expenses, exculpation and indemnification provisions of the agreements listed on Section 6.9(d) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation’s Constituent Documents.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all The provisions of its obligations under this Section 5.
(f) This 6.9 and the proviso to Section 5 is 1.4 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties. The rights of the Indemnified Parties and their respective heirs, executors and personal representatives and under this Section 6.9 shall be enforceable by them as third party beneficiaries hereofin addition to any rights such Indemnified Parties may have under the Constituent Documents of the Company or any of the Company Subsidiaries, or under any applicable contracts, insurance policies or Laws.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VI of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified in any manner that would materially adversely affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company CRI shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability ("D&O") insurance policies maintained that serves to reimburse persons currently covered by the Company Company's D&O insurance in full force and effect for the continued benefit of such persons for a continuous period of not less than two years from the Effective Time on terms that are not materially different from the Company's D&O insurance currently in effect (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which that are not less favorable)) with respect to matters occurring prior to the Effective Time.
(dc) In the event the Company Company, CRI, or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Company, CRI or the Surviving Corporation, as the case may be, or at CRI's option, CRI, shall assume the obligations set forth in this Section 57.07.
(d) Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 7.07 shall survive the consummation of the Merger.
(e) Purchaser shall use all reasonable efforts The parties acknowledge that the provisions of this Section 7.07 are in addition to cause and not in lieu of the indemnification obligations of the Company to perform all of its obligations under this set forth in the agreements listed in Section 5.
(f) This Section 5 is intended for the benefit 4.23 of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofDisclosure Schedule.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The certificate of (i) the sixth anniversary of the Effective Time incorporation and (ii) the Liquidation Date, the Byby-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 the certificate of the Byincorporation and by-laws of STC on the Companydate hereof, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the CompanySTC, unless such modification shall be required by Lawlaw.
(b) The Company STC shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger shall become effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company STC and each of its subsidiaries STC Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) STC or the Company Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to STC or the CompanySurviving Corporation, promptly after statements therefor are received and (ii) STC and the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither STC nor the Company Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); provided further that neither STC nor the Surviving Corporation shall be obligated pursuant to this Section 7.04(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action; provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall use all reasonable efforts to maintain until the earlier of (i) the sixth anniversary of in effect for three years from the Effective Time and (ii) the Liquidation DateTime, if available, the current directors' and officers' liability insurance policies maintained by the Company STC (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving 57 51 Corporation be required to expend pursuant to this Section 7.04(c) more than an amount per year equal to 125% of current annual premiums paid by STC for such insurance.
(d) In the event STC or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of STC or the Company Surviving Corporation, as the case may be, or at CGI's option, CGI, shall assume the obligations set forth in this Section 57.04.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. From and after the Effective Date, Shire shall (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of BioChem and its Subsidiaries (in all of their capacities) (a) For a period ending to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by BioChem pursuant to BioChem's bylaws and articles and indemnification agreements, if any, in existence on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable date hereof with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents officers and employees of the Company, unless such modification shall be required by Law.
BioChem and its Subsidiaries and (b) The Company shallwithout limitation to clause (a), to the fullest extent permitted under applicable Lawby law, indemnify and hold harmless in each present and former director, officer, fiduciary and agent of case for acts or omissions occurring at or prior to the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses Effective Date (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid for acts or omissions occurring in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofapproval of this Agreement and the consummation of the transactions contemplated hereby), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate include and cause to be maintained in the defense effect in BioChem's or any successor's bylaws and articles for a period of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation Date, if available, the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the bylaws and articles of BioChem and (iii) cause to be maintained for a period of six years after the Effective Date the current policies of directors' and officers' liability insurance policies and fiduciary liability insurance maintained by the Company BioChem (provided that the Company Shire (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not are, in the aggregate, no less favorable).
(dadvantageous to the insured) In with respect to claims arising from facts or events that occurred on or before the Effective Date; provided, however, that in no event shall Shire be required to expend in any one year an amount in excess of 200% of the Company or any annual premiums currently paid by BioChem for such insurance. The obligations of its successors or assigns (i) consolidates with or merges into any other person and the Shire under this Section 5.8 shall not be terminated or modified in such a manner as to adversely affect any indemnitees to whom this Section 5.8 applies without the continuing or surviving corporation or entity consent of such consolidation or merger or affected indemnitees (ii) transfers all or substantially all of its properties and assets it being expressly agreed that the indemnitees to any person, then, and in each such case, proper provision whom this Section 5.8 applies shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofof this Section 5.8).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Certificate of (i) the sixth anniversary Incorporation of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 NINTH of the By-laws Certificate of Incorporation of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who who, at or prior to the time of the consummation of the Offer Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by LawCompany or any of the Subsidiaries.
(b) The Company After the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent permitted under applicable Law, indemnify and hold harmless harmless, each present and former director, officer, fiduciary director and agent officer of the Company and each of its subsidiaries Subsidiary (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, occurring on or before the Effective Time, to the same extent as provided in the Certificate of Incorporation of the Company or after any other applicable contract or agreement in effect on the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) Parent or the Company Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received (provided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification) and (ii) the Company Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither Parent nor the Company Surviving Corporation shall not be liable for any settlement effected without its the Surviving Corporation's written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided, further, that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 6.05(b) 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 action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided, further, that, in the event that any claim for indemnification is asserted or made within such six year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(c) The Company Surviving Corporation shall maintain until the earlier of either (i) the sixth anniversary of cause to be obtained at the Effective Time "tail" insurance policies with a claims period of at least six years from the Effective Time with respect to directors' and officers' liability insurance in amount and scope at least as favorable as the Company's existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six years from the Liquidation DateEffective Time, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which that are not less favorable)) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.05(c) more than an amount per year equal to 250% of current annual premiums paid by the Company for such insurance; provided, however, that in the event of an expiration, termination or cancellation of such current policies, Purchaser or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums. The Company represents that such current annual premium amount is set forth in Section 6.05(c) of the Company Disclosure Schedule.
(d) In the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company Surviving Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 56.05.
(e) Purchaser Parent shall use all reasonable efforts to cause the Company Surviving Corporation to perform all of its the obligations of the Surviving Corporation under this Section 56.05.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier of (i) the sixth anniversary of From and after the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the CompanySurviving Corporation shall, and such provisions Parent shall not be amended, repealed or otherwise modified in any manner that would affect adversely cause the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, Surviving Corporation to the fullest extent permitted under by applicable LawLaw to, indemnify indemnify, defend, and hold harmless each present and former person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, fiduciary and agent officer or employee of the Company and or any subsidiary thereof, (each of its subsidiaries (an "Indemnified Party" and, collectively, the "Indemnified Parties") against all costs and losses, expenses (including including, reasonable attorneys' feesfees and expenses), judgments, fines, losses, claims, damages, costs or liabilities and settlement or, subject to the proviso of the next succeeding sentence, amounts paid in settlement, in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of actions or pertaining omissions occurring at or prior to any action the Effective Time and whether asserted, instituted or omission occurring before claimed prior to, at or after the date hereofEffective Time that are in whole or in part based on, or arising out of the fact that such person is or was a director, officer, or employee of the Company. In Without limiting the foregoing, in the event of any such loss, expense, claim, actiondamage, suit, proceeding cost or investigationliability (whether or not arising before the Effective Time), (iA) the Company Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanySurviving Corporation, promptly after statements therefor are received and otherwise advance to such Indemnified Party, upon request for reimbursement, documented expenses reasonably incurred, in either case to the extent not prohibited by the DGCL and upon receipt of any affirmation and undertaking required by the DGCL, (iiB) the Company shall Surviving Corporation will cooperate in the vigorous defense of any such mattermatter and (C) any determination required to be made in respect of whether an Indemnified Party's conduct complies with the standards set forth under the DGCL and the Surviving Corporation's charter or bylaws shall be made as provided by applicable Law, subject to the rights of the Indemnified Party to have such determination made in a court proceeding; provided, however, that the Company Surviving Corporation shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld). The Indemnified Parties as a group may retain only one law firm in respect of each related matter except to the extent there is, in the opinion of counsel to an Indemnified Party, under applicable standards of professional conduct, a conflict on any significant issue between positions of any two or more Indemnified Parties.
(cb) The Company shall maintain until the earlier For a period of (i) the sixth anniversary of six years after the Effective Time and (ii) the Liquidation Date, if availableTime, the current Surviving Corporation shall cause to be maintained in effect the policies of directors' and officers' liability insurance policies maintained by the Company for the benefit of those persons who are covered by such policies at the Effective Time (provided that or the Company Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which that are in all material respects not less favorableadvantageous to the insured parties in respect of matters occurring prior to the Effective Time), to the extent that such liability insurance can be maintained annually at a cost to the Surviving Corporation not greater than 125% of the premium for the current Company directors' and officers' liability insurance; provided, however, that if such insurance cannot be so maintained or obtained at such costs, the Surviving Corporation shall maintain or obtain as much of such insurance as can be so maintained or obtained at a cost equal to 125% of the current annual premiums of the Company for such insurance.
(dc) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of or such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, thenor otherwise dissolves or liquidates, then and in each either such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation (or Parent, in the case of a dissolution or liquidation) shall assume the obligations set forth for in this Section 56.7.
(d) To the fullest extent permitted by Law, from and after the Effective Time, all rights to liability limitation, exculpation or indemnification now existing in favor of the employees, directors or officers of the Company and its subsidiaries in respect of their activities or omissions as such prior to the Effective Time, as provided in the Company's charter or bylaws or in any applicable agreement, in effect on the date thereof or otherwise in effect on the date hereof, shall survive the Merger and shall continue in full force and effect thereafter.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all The provisions of its obligations under this Section 5.
(f) This Section 5 is 6.7 are intended to be for the benefit of the Indemnified Parties and their respective heirsof, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereofby, each Indemnified Party, his or her heirs, and his or her representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on Except to the earlier of (i) extent required by law, until the sixth fifth anniversary of the Effective Time, Parent will not take any action so as to amend, modify or repeal the provisions for indemnification of directors, officers, stockholders, employees or agents contained in the certificates or articles of incorporation or bylaws (or other comparable charter documents) of the Surviving Corporation and its Subsidiaries (which as of the Effective Time shall be no less favorable to such individuals than those maintained by the Company and (iiits Subsidiaries on the date hereof) in such a manner as would materially and adversely affect the Liquidation Daterights of any individual who shall have served as a director, the By-laws officer, stockholder, employee or agent of the Company or any of its Subsidiaries prior to the Effective Time (each an "Indemnified Party") to be indemnified by such corporations in respect of their serving in such capacities prior to the Effective Time. Parent shall contain provisions no less favorable with respect to indemnification indemnify all directors, officers, employees, and stockholders who are officers or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws Company against any liability or losses (including attorney's fees for counsel who are reasonably acceptable to Parent) any of 38 45 them may incur because of any claim brought against them prior to or within five years from the Effective Time as officers, directors, employees, agents or stockholders of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claimtherewith, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining shall advance attorney's fees to any action or omission occurring before or after the date hereof. In the event of them to defend any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel ; provided that Parent shall be reasonably satisfactory entitled to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; and provided, howeverfurther, that the Company Parent shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company ; and provided, further, that Parent shall maintain until not be obligated pursuant to this Section to pay the earlier fees and disbursements of (i) more than one counsel for all Indemnified Parties in any single action, except to the sixth anniversary extent that, in the opinion of counsel for the Effective Time and (ii) Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the Liquidation Date, if available, the current outcome of such action. Parent may obtain directors' and officers' liability insurance covering its obligations under this Section.
(b) The Company shall purchase prior to the Effective Time, and Parent and the Surviving Corporation shall maintain, until September 28, 1999, the policies of directors' and officers' liability insurance maintained by the Company and its Subsidiaries as of the date hereof (provided that the Company may substitute therefor or policies of at least the same coverage and amounts containing terms that are no less advantageous to the insured parties) with respect to claims arising from facts or events that occurred on or prior to the Effective Time.
(c) The provisions of this Section are intended to be for the benefit of, and conditions which are not less favorable)shall be enforceable by, each Indemnified Party and each party entitled to insurance coverage under paragraph (b) above, respectively, and his or her heirs and legal representatives, and shall be in addition to any other rights an Indemnified Party may have under the certificate or articles of incorporation or bylaws of the Surviving Corporation or any of its Subsidiaries, under the DGCL or otherwise.
(d) In the event the Company Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in paragraphs (a) and (b) of this Section 5Section.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. 7.7.1. Northwest Bancshares will maintain, or will cause Northwest Bank to maintain, in effect for six (a6) For a period ending on the earlier of (i) the sixth anniversary of years following the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if availableTime, the current directors' ’ and officers' ’ liability insurance policies maintained by the Company MutualFirst Financial (provided provided, that the Company Northwest Bancshares may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring prior to the Effective Time; provided, however, that in no event will Northwest Bancshares be required to expend pursuant to this Section 7.7.1, in the aggregate for such policy or policies, 69
7.7.2. In addition to Section 7.7.1, after the Effective Time, Northwest Bancshares will 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 MutualFirst Financial or a MutualFirst Financial Subsidiary (including, solely to the extent required by the Agreement and Plan of Merger, dated as of October 4, 2017, by and between MutualFirst Financial and Universal Bancorp, the “Universal Indemnified Parties”, as defined in the Agreement and Plan of Merger, dated as of October 4, 2017, by and between the Universal Indemnified Parties, with such indemnification expiring on February 28, 2024) (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorneys’ fees).
, liabilities or judgments or amounts that are paid in settlement (dwhich settlement shall require the prior written consent of Northwest Bancshares, which consent will not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of MutualFirst Financial or a MutualFirst Financial Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring before the Effective Time (including, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time (the “Indemnified Liabilities”), to the fullest extent as would have been permitted by MutualFirst Financial under MutualFirst Financial’s Articles of Incorporation and Bylaws, to the extent not prohibited by applicable law. Northwest Bancshares will pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted by applicable law (to the extent not prohibited by federal law) upon receipt of an undertaking to repay such advance payments if the Indemnified Party is adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.7.2 upon learning of any Claim, shall notify Northwest Bancshares (but the failure so to notify Northwest Bancshares will not relieve Northwest Bancshares from any liability which it may have under this Section 7.7.2, except to the extent such failure materially prejudices Northwest Bancshares) and shall deliver to Northwest Bancshares the undertaking referred to in the previous sentence. In the event of any such Claim (whether arising before or after the Company Effective Time) (1) Northwest Bancshares will have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption Northwest Bancshares will not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if Northwest Bancshares elects not to assume such defense, or counsel for the 70
7.7.3. The obligations of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations Northwest Bancshares provided under this Section 5.
(f) This Section 5 is 7.7 are intended for the benefit of to be enforceable against Northwest Bancshares directly by the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable binding on all respective successors and permitted assigns of Northwest Bancshares. Northwest Bancshares will pay all reasonable costs, including attorneys’ fees, as incurred and in advance of the final disposition of any claim, action, suit, proceeding or investigation by them as third party beneficiaries hereofany Indemnified Party in successfully enforcing the indemnity and other obligations provided for in this Section 7.7 to the fullest extent permitted under applicable law; provided, however such payment of costs shall be immediately reimbursed to Northwest Bancshares by such Indemnified Party if the Indemnified Party is not entitled to the indemnification or other obligations provided for in this Section 7.7. The rights of each Indemnified Party hereunder are in addition to any other rights such Indemnified Party may have under applicable law.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on the earlier The Articles of (i) the sixth anniversary of the Effective Time Incorporation and (ii) the Liquidation Date, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 VIII of the Articles of Incorporation and Article VII of the By-laws of the Company, and such which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawlaw.
(b) The Company shall, to the fullest extent permitted under applicable Lawlaw and regardless of whether the Merger becomes effective, indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereofEffective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to to, in whole or in part any action or omission in their capacity as an officer, director, employee, fiduciary or agent (including in connection with this Agreement and the transactions contemplated hereby), whether occurring before or after the Effective Time, for a six-year period after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company or the Surviving Corporation, as the case may be, shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the CompanyCompany or the Surviving Corporation, promptly after statements therefor are received and (ii) the Company and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided further that neither the Company nor the Surviving Corporation shall be obligated pursuant to this Section 6.07(b) to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided further that, in the event that any claim for indemnification is asserted or made within such six-year period, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim.
(c) The Company Surviving Corporation shall use its best efforts to maintain until the earlier of (i) the sixth anniversary of in effect for six years from the Effective Time and (ii) the Liquidation Datefor so long thereafter as any claim asserted prior to such date has not been fully adjudicated, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may or substitute therefor policies of at least the same amounts and coverage containing terms and conditions which are not materially less favorablefavorable to the insured parties with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.07(c) more than an amount per year equal to 150% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be approximately $175,000 in the aggregate).
(d) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in this Section 56.07.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
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Directors’ and Officers’ Indemnification and Insurance. (a) For a period ending on After the earlier of (i) Effective Time through the sixth anniversary of the Effective Time and (ii) the Liquidation DateTime, the By-laws of the Company Surviving Corporation shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and (as of the Effective Time) or former director, officer, fiduciary and agent director or employee of the Company and each of its subsidiaries Subsidiaries (collectivelythe “D&O Indemnified Persons”), the "Indemnified Parties") against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities ’ fees and settlement amounts paid expenses) incurred in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof)investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Person is or was an officer, director or employee of the Company or any action of its Subsidiaries, whether asserted or omission occurring before claimed prior to, at or after the date hereof. In Effective Time, to the event of fullest extent permitted under applicable law; provided, that no D&O Indemnified Person may settle any such claimclaim without the prior approval of Parent, action, suit, proceeding unless such approval is unreasonably withheld or investigation, (i) the Company shall pay the reasonable fees and delayed. Each D&O Indemnified Person will be entitled to advancement of expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate incurred in the defense of any such matterclaim, action, proceeding or investigation from Parent or the Surviving Corporation within ten Business Days of receipt by the Surviving Corporation from the D&O Indemnified Person of a request therefor; provided, howeverthat any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL, to repay such advances if it is ultimately determined that the Company shall such person is not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld)entitled to indemnification.
(cb) The Company Parent shall cause the Surviving Corporation to maintain until the earlier of in effect (i) in its certificate of incorporation and bylaws for a period of six years after the sixth anniversary Effective Time, provisions substantially similar in substance to the current provisions regarding elimination of liability of directors and indemnification of, and advancement of expenses to, officers, directors and employees contained in the certificate of incorporation and bylaws of the Effective Time Company and (ii) for a period of six years after the Liquidation Date, if availableEffective Time, the current policies of directors' ’ and officers' ’ liability insurance policies and fiduciary liability insurance maintained by the Company (provided provided, that the Company Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are 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 Surviving Corporation be required to expend in any one year an amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not less favorable)exceeding such amount.
(c) Notwithstanding any time limit herein to the contrary, if any claim, action, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any D&O Indemnified Person on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.5 (without regard to any such time limit) shall continue in effect until the final disposition of such claim, action, proceeding or investigation.
(d) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and or assigns of the Company Surviving Corporation shall assume succeed to the obligations set forth in this Section 55.5.
(e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5.
(f) This Section 5 5.5 shall survive the consummation of the Merger at the Effective Time, is intended for to benefit the benefit Company, the Surviving Corporation and the D&O Indemnified Persons, shall be binding on all successors and assigns of the Indemnified Parties and their respective heirs, executors and personal representatives Surviving Corporation and shall be enforceable by them as third party beneficiaries hereofthe D&O Indemnified Persons.
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Samples: Merger Agreement (Airxcel Inc)
