Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms. (b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate. (c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries. (d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05. (e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party. (f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 7 contracts
Samples: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Surviving Corporation and exculpation provisions its Subsidiaries as of the indemnification agreements by Effective Time shall (and, Parent shall cause the Surviving Corporation and among its Subsidiaries as of the Effective Time to) honor and fulfill in all respects the obligations of the Company and its directors Subsidiaries under (i) the indemnification agreements between the Company or any of its Subsidiaries and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period any of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the their respective current or former directors and officers and any person who becomes a director or officers officer of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or Subsidiaries prior to the Effective TimeTime (the “Indemnified Persons”), were directorsand (ii) indemnification, officers, employees, fiduciaries expense advancement and exculpation provisions in any certificate of incorporate or agents bylaws or comparable organizational document of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from on the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with date of this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amountAgreement. In addition, during the Company may and, period commencing at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time and ending on terms, conditions, retentions and limits the sixth (6th) anniversary of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, Corporation and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations its Subsidiaries as of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Time shall comply (and Parent shall cause the Surviving Company to comply) with all Corporation and its Subsidiaries as of the Company’s obligations, Effective Time to) cause the certificates of incorporation and each bylaws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries as of the Acceptance Time to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are no less favorable than the indemnification, exculpation and advancement of expenses provisions contained in the certificates of incorporation and bylaws (or other similar organizational documents) of the Company and its Subsidiaries as of the date hereof, and during such six (6) year period, such provisions shall not be repealed, amended or otherwise modified in any manner except as required by applicable Law or as provided below.
(b) Without limiting the generality of the provisions of Section 7.8(a), during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law, the Surviving Corporation and its Subsidiaries as of the Effective Time shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to comply with their respective obligations to as of the Effective Time to) indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the each Indemnified Parties Person from and against any costs, fees and all costs or expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities Liabilities and amounts paid in settlement in connection with any actual or threatened claim, actionproceeding, suit, proceeding investigation or investigationinquiry, whether civil, criminal, administrative or investigative investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (“Damages”), arising out of, relating to i) any action or omission or alleged action or omission in connection with (A) the fact that an such Indemnified Party is or was Person’s capacity as a director, officer officer, employee or employee agent of the Company or any of its Subsidiaries or other Affiliates (B) any acts regardless of whether such action or omissions occurring omission, or alleged to have action or omission, occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time), to or (ii) any of the extent provided under transactions contemplated by this Agreement. In addition, during the Company’s or such Subsidiaries’ respective organizational period commencing at the Effective Time and governing documents or agreements in effect ending on the date hereof sixth (true and complete copies 6th) anniversary of which shall have been delivered to Parent prior to the date hereof) and Effective Time, to the fullest extent permitted by the CICL or any other applicable Law; provided, the Surviving Corporation and its Subsidiaries as of the Effective Time shall (and Parent shall cause the Surviving Corporation and its Subsidiaries as of the Effective Time to) advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such claim, proceeding, investigation or inquiry upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification hereunder. If, at any time prior to the sixth (6th) anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting in good faith a claim for indemnification or advancement of expenses under this Section 7.8(b), then the claim asserted in such notice shall be subject survive the sixth (6th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. In the event of any such claim, proceeding, investigation or inquiry, (i) the Surviving Corporation shall have the right to any limitation imposed from time to time under applicable Law; and control the defense thereof after the Acceptance Time, (ii) each Indemnified Person shall be entitled to retain his or her own counsel, whether or not the Surviving Corporation shall elect to control the defense of any such persons against claim, proceeding, investigation or inquiry, (iii) the Surviving Corporation shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Person, promptly after statements therefor are received, whether or not the Surviving Corporation shall elect to control the defense of any such claim, proceeding, investigation or inquiry, and (iv) no Indemnified Person shall be liable for any settlement effected without his or her prior express written consent. Notwithstanding anything to the contrary set forth in this Section 7.8(b) or elsewhere in this Agreement, neither the Surviving Corporation nor any of its Affiliates (including Parent) shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Damages Indemnified Persons from all liability arising out of such claim, proceeding, investigation or inquiry.
(c) During the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain in effect directors’ and officers’ liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person covered by the Company’s currently in such personsforce directors’ official capacity as an officerand officers’ (provided that Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing term and conditions which are no less advantageous) liability insurance (“Current Company D&O Insurance”), director or other fiduciary on terms with respect to the coverage and amounts that are no less favorable than those of the Current Company D&O Insurance; provided, however, that in satisfying its obligations under this Section 7.8(c), Parent and the Surviving Corporation shall not be obligated to pay annual premiums in excess of three hundred percent (300%) of the annual amount paid by the Company or any for coverage during its current coverage period (such three hundred percent (300%) amount, the “Maximum Annual Premium”); provided that, if the annual premiums of its Subsidiaries if such service was at insurance coverage exceed such amount, Parent and the request or Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for the benefit of Maximum Annual Premium. Prior to the Effective Time, notwithstanding anything to the contrary set forth in this Agreement, the Company or any may purchase a six (6) year “tail” prepaid policy on the Current Company D&O Insurance. In the event that the Company elects to purchase such a “tail” policy prior to the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of its Subsidiariesall other obligations of Parent and the Surviving Corporation under the first sentence of this Section 7.8(c) for so long as such “tail” policy shall be maintained in full force and effect.
(d) In the event the Company that Parent or the Surviving Company Corporation (or any of their respective its successors or assigns assigns) (i) consolidates with or merges into any other person Person and shall is not be the continuing or Surviving Company 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 or Parent and the Surviving Company, as the case may be, or at Parent’s option, Parent, Corporation shall assume all of the obligations thereof set forth in this Section 6.057.8.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 6 contracts
Samples: Merger Agreement (Skullcandy, Inc.), Merger Agreement (Mill Road Capital II, L.P.), Merger Agreement (Mill Road Capital II, L.P.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on as of the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries directors or agents officers of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time Time, the current directors’ and officers’ liability insurance policies maintained by the Company as of the date hereof with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time); provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under the Company’s current policies; favorable, and provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions terms and limits of liability conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties present and former officers and directors thereof against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating to or in connection with (Ai) the fact that an Indemnified Party such person is or was a director, director or officer or employee of the Company or any of its Subsidiaries such Subsidiary or (Bii) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law, including the approval of this Agreement, the Merger or the other Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any such person; providedprovided that this Section 6.05(c) is not intended to confer any new or additional rights on any such person, that such and the indemnification and other obligations of the Company set forth above shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any the Company’s and all Damages arising out of acts or omissions its Subsidiaries’ respective organizational and governing documents in such persons’ official capacity effect as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesdate hereof.
(d) In the event the Company or the Surviving Company or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Surviving Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 5 contracts
Samples: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFor six years after the Effective Time, advancement the Surviving Corporation and exculpation provisions its Subsidiaries shall, and Parent shall cause the Surviving Corporation to, to the fullest extent permitted under the DGCL, honor and fulfill in all respects the obligations of the indemnification agreements by and among the Company and its directors the Company Subsidiaries under (i) the Company Charter, the Company Bylaws, and certain executive officers as in effect at the Effective Time shall survive certificate of incorporation and bylaws (or equivalent organizational documents) of each Company Subsidiary and (ii) any and all indemnification agreements between the Merger Company or any Company Subsidiary and shall not be amended, repealed or otherwise modified for a period any of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current their respective present or former directors and officers (and any Person who becomes a director or officers officer of the Company or any such Company Subsidiary prior to the Effective Time) (collectively, the “Indemnified Parties”). In addition, for six years after the Effective Time, the certificate of its Subsidiaries. The memorandum incorporation and articles of association bylaws of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and exculpation, indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of Company Charter or the Company as in effect on the date hereofBylaws, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals whothe 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 rights provided under this Section 6.04(a) until disposition of such claim.
(b) For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, to the fullest extent permitted under applicable Law, indemnify and hold harmless each Indemnified Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or 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 the Effective Time, to the same extent such Indemnified Parties are indemnified as of the date of this Agreement pursuant to the Company Charter, the Company Bylaws, and the certificate of incorporation and bylaws (or equivalent organizational documents) of each Company Subsidiary and to the fullest extent permitted by applicable Law, the Surviving Corporation 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.
(c) The Surviving Corporation shall either (i) cause to be obtained at 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 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, were directors, officers, employees, fiduciaries Time or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(bii) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time Time, if available, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective TimeCompany; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under substantially similar with respect to matters occurring prior to the Company’s current policiesEffective Time; provided, furtherhowever, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b6.04(c) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance; provided further that in the event of an expiration, and if the cost termination or cancellation of such insurance policy exceeds such amountcurrent policies, then Parent or the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification Corporation shall be subject required to any limitation imposed from time to time obtain as much coverage as is possible under applicable Law; and (ii) substantially similar policies for such persons against any and all Damages arising out of acts or omissions maximum annual amount in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesaggregate annual premiums.
(d) In the event the Company or the Surviving Company Corporation or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other person and shall not be the continuing or Surviving Company surviving 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 or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume succeed to the obligations set forth in this Section 6.056.04.
(e) The agreements and covenants contained in Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries 6.04.
(or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. f) The provisions of this Section 6.05 6.04 shall survive the consummation of the Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their successors, assigns and heirs and legal representatives, (each of which whom shall be a Third Party beneficiary of the provisions third party beneficiaries of this Section 6.056.04) 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. The obligations of Parent and the Surviving Company under Unless required by applicable Law, this Section 6.05 shall 6.04 may not be terminated amended, altered or modified repealed after the Effective Time in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company Parties or any of its Subsidiaries their successors, assigns or their respective officers, directors and employees, it being understood and agreed that heirs without the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementswritten consent of the affected Indemnified Parties.
Appears in 4 contracts
Samples: Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and the Merger Sub agree that all rights to indemnification, advancement of expenses, exculpation, limitation of liability and exculpation provisions any and all similar rights now existing in favor of the indemnification agreements by each present and among the former director, officer, employee and agent of Company and its directors and certain executive officers each Company Subsidiary (collectively, the "Indemnified Parties") as provided in the Company's present charter, by-laws or contractual arrangements in effect at on the Effective Time date hereof, shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time, 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, who at or any time prior to the Effective Time, Time were directors, officers, employees, fiduciaries employees or agents of the Company, unless such modification shall be required by Law. From law, and after Parent agrees to cause the Effective TimeSurviving Corporation to comply with its obligations thereunder; provided, however, that in the event any agreement 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 continue until the disposition of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsall such claims.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the indemnification obligations set forth in 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 6.057.04 as a condition to such merger, consolidation or transfer becoming effective.
(ec) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 7.04 are (i) intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified Parties and their heirs (ii) in addition to, and legal representativesnot in substitution for, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated any other rights to indemnification or modified in contribution that any such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyperson may have by contract or otherwise.
(fd) Nothing For a period of three years after the Effective Time, Parent shall use its best efforts to maintain in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to effect the directors’ ' and officers’ ' liability insurance claims under policies maintained by Company; PROVIDED, HOWEVER, that in no event shall Parent be required to expend in any one year in excess of 150% of the annual premium currently paid by Company for such coverage, which Company hereby represents is $250,000, and provided further, that if the premium for such coverage exceeds such amount, Parent shall purchase a policy or other agreement that is or has been in existence with respect to the Company or any greatest coverage available for such 150% of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementsannual premium.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Doubleclick Inc), Merger Agreement (Doubleclick Inc), Agreement and Plan of Merger and Reorganization (Netgravity Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for For a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed unless otherwise required by applicable Law, the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain cause the Charter Documents of the Surviving Corporation and its Subsidiaries to contain provisions no less favorable with respect to the indemnification of and advancement of expenses to directors and officers than are set forth in the Charter Documents of the Company (or the relevant Subsidiary) as in effect for on the date hereof. Parent shall, and shall cause the Surviving Corporation to, indemnify and advance expenses to, each present and former director or officer of the Company and each present and former director or officer of each Subsidiary (collectively, the "INDEMNIFIED PARTIES"), in respect of actions, omissions or events through the Effective Time to the fullest extent permitted by Law. Without limiting the generality of the preceding sentence, if any Indemnified Party becomes involved in any actual or threatened action, suit, claim, proceeding or investigation covered by this Section 6.05 after the Effective Time, Parent shall cause the Surviving Corporation to, to the fullest extent permitted by Law, promptly advance to such Indemnified Party his or her legal or other expenses (including the cost of any investigation and preparation incurred in connection therewith).
(b) The Surviving Corporation shall either (i) cause to be obtained a "tail" insurance policy with a claims period of at least six (6) years from the Effective Time the current 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 prior to the Effective Time or (ii) maintain the existing officers' and directors' liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, PROVIDED that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those provided under to the Company’s current policiesIndemnified Parties) for a period of six years after the Effective Time so long as the annual premium therefor is not in excess of 250% of the last annual premium paid prior to the date hereof; providedPROVIDED, furtherHOWEVER, that if the existing officers' and directors' liability insurance policies expire, are terminated or cancelled during such six-year period or require an annual premium in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300excess of 250% of the current annual premiums premium paid by the Company for such insurance, and if the cost Company will obtain as much coverage as can be obtained for the remainder of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage period for a cost premium not exceeding in excess of 250% (on an annualized basis) of such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminatecurrent premium.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, If Parent or the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company Corporation or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or shall cease to continue to exist for any reason 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 or the Surviving CompanyCorporation and the transferee or transferees of such properties and assets, as the case may be, or at Parent’s option, Parentapplicable, shall assume all of the obligations set forth in this Section 6.05.
(ed) The agreements and covenants contained in Indemnified Parties shall be third party beneficiaries of this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise6.05. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, of each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party, his or her heirs and his or her representatives.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 3 contracts
Samples: Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the certain indemnification agreements by and among the Company and its directors and certain executive officers officers, as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its SubsidiariesIndemnified Parties. The memorandum Memorandum and articles Articles of association of the Surviving Company shall Association will contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification that are at least as favorable to the directors, officers or employees of liability and advancement of expenses than are set forth the Company as those contained in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such except to the extent prohibited by the Cayman Companies Law or any other applicable Law, which provisions will not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyIndemnified Parties, unless such modification shall be is required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from From and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the current or former directors, officers or employees of the Company or any Subsidiaries (the “Indemnified Parties Parties”) against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries such Subsidiary or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) occur prior to or at the Effective Time, Time to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL Cayman Companies Law or any other applicable Law, including (X) the approval of this Agreement, the Merger or the other Transactions or arising out of or pertaining to the Transactions; and (Y) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party; provided, however, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons Indemnified Parties against any and all Damages arising out of acts or omissions in connection with such persons’ official capacity persons serving as an officer, director or other fiduciary in the Company or any of its Subsidiaries entity if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(c) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain the Company’s and its Subsidiaries’ existing directors’ and officers’ liability insurance (including for acts or omissions occurring in connection with this Agreement and the consummation of the Transactions) covering each Indemnified Party by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof for a period of six (6) years after the Effective Time; provided, however, that, subject to the immediately succeeding sentence, in no event shall the Surviving Corporation be required to expend in any one year an amount in excess of 300% of the current annual premium paid by the Company for such insurance. In addition, the Company may and, at Parent’s request, the Company shall purchase a six (6) year “tail” prepaid policy prior to the Effective Time on terms and conditions providing substantially equivalent benefits as the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Closing, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations under this Section 7.05(c) shall terminate.
(d) In the event the Company or If Parent, the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, thenthen the obligations of Parent or the Surviving Corporation, as the case may be, that are set forth under this Section 7.05 shall survive, and in each such caseto the extent necessary, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.057.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 7.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party7.05.
(f) The agreements and covenants contained in this Section 7.05 shall not be deemed to be exclusive of any other rights to which any such 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 7.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 3 contracts
Samples: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFrom and after the Effective Time, advancement Parent and exculpation provisions the Surviving Corporation will maintain in effect in all respects the current obligations of the Company pursuant to any indemnification agreements by and among between the Company and its directors directors, officers and certain executive officers employees (the “Indemnified Parties”) in effect immediately prior to the Effective Time and any indemnification provisions under the Certificate of Incorporation and By-Laws as in effect at on the Effective Time date hereof. The Certificate of Incorporation and By-Laws of the Surviving Corporation shall survive contain provisions with respect to exculpation and indemnification that are no less favorable to the Merger Indemnified Parties than are set forth in the Certificate of Incorporation and By-Laws of the Company, in each case as in effect on the date hereof, 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyIndemnified Parties, unless such modification shall be required by applicable Law and then only to the minimum extent required by applicable Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, Corporation to maintain in effect for six (6) years from the Effective Time Time, if available, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under favorable) with respect to matters occurring prior to the Company’s current policiesEffective Time; provided, furtherhowever, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b7.07(b) more than an amount per year equal to 300250% of the current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be $905,063 in the aggregate); provided, and however, that, if the cost annual premiums for such insurance exceed such amount or in the event of an expiration, termination or cancellation of such insurance policy exceeds such amountcurrent policies, then the Surviving Company Corporation shall be required to obtain a policy with as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums; provided, further that Parent and the greatest coverage for a cost not exceeding such amount. In addition, the Company Surviving Corporation may andsatisfy its obligations under this Section 7.07(b) by obtaining, at Parent’s requestthe Effective Time, the Company shall, purchase a six prepaid (6)-year or “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing ”) directors’ and officers’ liability insurance maintained by policy, in each case, the Companymaterial terms of which, including coverage, amount and creditworthiness of the issuer, are no less favorable to such directors and officers than the insurance coverage otherwise required under this Section 7.07(b). If In such event, Parent and the Surviving Corporation shall maintain such “tail” prepaid policies policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Corporation under the first sentence of this Section 7.07(b) for such six-year period; provided that in no event shall the Surviving Corporation pay a premium for such “tail” policy that in the aggregate exceeds $2,000,000 (it being understood that the Surviving Corporation may nevertheless acquire a “tail” policy providing such coverage as may be obtained for such $2,000,000 amount). In the event that Parent or Purchaser shall not have been obtained by the Company purchased any such “tail” policy from an insurance provider of national reputation that is not affiliated with Parent at least 3 business days prior to the Effective Time, the Surviving Company shallshall be entitled to purchase, and Parent shall cause on behalf of the Surviving Corporation, such “tail” policy, provided that in no event shall the Company to, maintain pay a premium for such policies “tail” policy that in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateaggregate exceeds $2,000,000.
(c) Subject to In the terms and conditions of this Section 6.05, from and after the Effective Timeevent Parent, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company Corporation or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or or, with respect to the Surviving Corporation, at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.057.07.
(d) Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 7.07.
(e) The agreements and covenants contained in this This Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are 7.07 is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which personal representatives and shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of binding on Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified PartyCorporation and their successors and assigns.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 3 contracts
Samples: Merger Agreement (Stmicroelectronics Nv), Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Genesis Microchip Inc /De)
Directors’ and Officers’ Indemnification and Insurance. (a) The articles of incorporation and bylaws (or comparable organizational documents) of the Surviving Corporation shall contain provisions no less favorable with respect to exculpation, advances of expenses and indemnification than are set forth in the articles of incorporation and bylaws (or comparable organizational documents) of the Company as in effect on the date hereof, 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 adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were former or present directors or officers of the Company, unless such modification shall be required by Law. The indemnification, advancement of expenses and exculpation provisions of the indemnification agreements and employment agreements by and among the Company or the Company Subsidiaries and its their respective directors and certain executive officers officers, as in effect at the Effective Time Time, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsSubsidiaries.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company or the Company Subsidiaries with respect to matters occurring at or prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) ), on terms with respect to coverage and amount conditions no less favorable to the Indemnified Parties than those in effect as of on the Effective Timedate hereof; provided, however, that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under the Company’s current policies; policy, and provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, insurance (and if the cost in such case shall purchase as much of such insurance policy exceeds coverage as possible for such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount). In addition, the Company may andmay, at Parent’s request, the Company shallits option, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions terms and limits of liability conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (with all of its obligations, and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations obligations, to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties present and former officers and directors thereof against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with with, (A) the fact that an Indemnified Party such person is or was a director, director or officer or employee of the Company or any of its Subsidiaries Company Subsidiary, or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Company Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL NRS or any other applicable Law; , including the approval of this Agreement, the Merger or the other Transactions or arising out of or pertaining to the Transactions, provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries Company Subsidiary if such service was at the request or for the benefit of the Company or any Company Subsidiary; provided, that, in the case of its Subsidiarieseach of (i) and (ii), if required by applicable Law, such person shall have provided the Surviving Corporation with a written undertaking to repay any and all amounts advanced if it shall ultimately be determined that he or she is not entitled to indemnification under or pursuant to this Section 6.05(c).
(d) In The obligations of Parent and the event Surviving Corporation and the Company Subsidiaries under this Section 6.05 shall not be terminated or modified by such parties in a manner so as to adversely affect any Indemnified Party or any other person entitled to the benefit of this Section 6.05, to whom this Section 6.05 applies, without the consent of such affect Indemnified Party or person, as the case may be. If Parent or the Surviving Company Corporation or any of their respective subsidiaries or any of their respective 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 Company surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or substantially all of its properties and assets to any person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall succeed to and assume all of the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 3 contracts
Samples: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Directors’ and Officers’ Indemnification and Insurance. (a) The For a period of six (6) years from and after the Closing, the Trayport Companies shall indemnify and hold harmless, and provide advancement of expenses to, all past and present directors and officers of any Trayport Company as of the date hereof and anyone who becomes a director or officer of any Trayport Company during the period from the date of this Agreement through the Closing (in such capacities) (the “D&O Indemnified Persons”) for all acts and omissions occurring at or prior to the Closing to the same extent such D&O Indemnified Persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Trayport Companies pursuant to the organizational documents of any applicable Trayport Company as in existence on the date hereof, in each case, to the fullest extent that such indemnification and advancement is permitted by applicable Law. Purchaser shall cause the organizational documents of the Trayport Companies to contain provisions with respect to indemnification, advancement of expenses and exculpation provisions limitation of director and officer liability that are no less favorable to the D&O Indemnified Persons with respect to acts or omission occurring at or prior to the Closing than those set forth in the organizational documents of the indemnification agreements by and among Trayport Companies as of the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall date of this Agreement, which provisions thereafter shall, subject to applicable Law, not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified D&O Indemnified Persons for a period of six (6) years from and after the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by LawClosing. From and after the Effective TimeClosing, any agreement of any Indemnified Party with Purchaser shall cause the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyTrayport Companies to honor, shall survive the Merger and shall continue in full force and effect in accordance with its their respective terms, each of the covenants contained in this Section 6.8.
(b) The Surviving Company Prior to the Closing, Sellers shall, and Parent or if Sellers are unable to, Purchaser shall cause the Surviving Company Trayport Companies as of or following the Closing to, maintain in effect for purchase a six (6) years from the Effective Time year prepaid “tail” policy covering those persons covered by the current policies of directors’ and officers’, employed lawyers’ liability insurance policies and fiduciary liability insurance maintained by the Company Trayport Companies with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time, Closing (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions transactions contemplated hereby) (the parties covered thereby“D&O Insurance”); provided that the Trayport Companies shall not pay, and the Trayport Companies shall not be required to pay, for such “tail” policy more than 300% of the current annual premium paid by the Trayport Companies for such D&O Insurance. If such D&O Insurance has been obtained by Sellers or the Trayport Companies prior to the Closing, Purchaser shall cause such D&O Insurance to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Trayport Companies. If Sellers or the Trayport Companies shall for any reason fail to obtain such “tail” policy, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to Trayport Companies or Purchaser shall maintain for a period of six years after the Indemnified Parties than those in effect as of the Effective Time; provided, Closing such D&O Insurance (provided that the Surviving Company Trayport Companies or Purchaser (or any successor) may substitute therefor policies of at least the same coverage and amounts containing termsterms and conditions which are, conditionsin the aggregate, retentions and limits of liability that are no less favorable advantageous to the insured); provided that in no event shall the Trayport Companies or Purchaser be required to pay in any one year more than those provided under 200% of the Company’s current policiesannual premium paid by the Trayport Companies for such D&O Insurance; provided, further, that in no event shall if the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds D&O Insurance exceed such amount, then the Surviving Company Trayport Companies or Purchaser shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective TimeIf Purchaser, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company Trayport Companies or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving corporation or other 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 Purchaser or the Surviving CompanyTrayport Companies, as the case may be, or at Parent’s option, Parent, shall assume all of the obligations set forth in this Section 6.056.8.
(ed) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent Purchaser, the Trayport Companies and the Surviving Company any successors thereto under this Section 6.05 6.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any D&O Indemnified Party Person to whom this Section 6.8 applies without the consent of such affected D&O Indemnified Party.
Person (f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and expressly agreed that the indemnification provided for in D&O Indemnified Persons to whom this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements6.8 applies shall be third party beneficiaries of this Section 6.8).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (BGC Partners, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationParent agrees that all rights to indemnification now existing in favor of any employee, advancement and exculpation provisions agent, director or officer of the indemnification agreements by and among the Company and its directors the Company Subsidiaries (the "INDEMNIFIED PARTIES") as provided in their respective charters or by-laws, in an agreement between an Indemnified Party and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed Company or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers one of the Company Subsidiaries, or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as otherwise in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, hereof 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; provided that in accordance the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims. The Parent also agrees to indemnify all Indemnified Parties to the fullest extent permitted by applicable law with its termsrespect to all acts and omissions arising out of such individuals' services as officers, directors, employees or agents of the Company or any of the Company Subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, the Company or any of the Company Subsidiaries, occurring prior to the Effective Time including the transactions contemplated by this Agreement. Without limiting of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated by this Agreement, occurring prior to, and including, the Effective Time, the Parent will pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith.
(b) The Parent agrees that the Company and, from and after the Effective Time, the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain to be maintained in effect for not less than six (6) years from the Effective Time the current policies of the directors’ ' and officers’ ' liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective TimeCompany; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability that conditions which are no less favorable than those advantageous and provided under that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Company’s current policiesEffective Time; and provided, further, that in no event shall the Surviving Company Corporation shall not be required to expend pursuant to this Section 6.05(b) more than pay an amount per year equal to 300annual premium in excess of 100% of current the last annual premiums premium paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, date hereof and if the Surviving Company shall, and Parent shall cause Corporation is unable to obtain the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under insurance required by this Section 6.05(b5.10(b) it shall terminateobtain as much comparable insurance as possible for an annual premium equal to such maximum amount.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (PLD Telekom Inc), Merger Agreement (PLD Telekom Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Parent and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner Acquisition Sub agree that would adversely affect the all rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed for acts 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, omissions occurring at or prior to the Effective Time, were directorswhether asserted or claimed prior to, officers, employees, fiduciaries at or agents of the Company, unless such modification shall be required by Law. From and after the Effective TimeTime (including any matters arising in connection with the transactions contemplated by this Agreement), any agreement now existing in favor of any Indemnified Party with Indemnitee as provided in the articles or certificates of incorporation or by-laws (or comparable organization documents) of the Company or any of its Subsidiaries regarding exculpation subsidiaries or indemnification of liability affiliates or advancement of expenses shall be assumed by the Surviving Company, in any agreement shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement such Indemnitee. Parent and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event Corporation shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to complyall 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 (ii) with all not amend, repeal or otherwise modify any provisions of the Company’s obligations, and each Restated Certificate of Incorporation or By-laws (or equivalent organizational documents) of the Company or any of its subsidiaries as in effect on the date of this Agreement and any indemnification agreement of the Company or its subsidiaries or other applicable contract that has been made available to Parent as in effect on the date of this Agreement in any manner that would adversely affect the rights thereunder of any Indemnitees.
(b) Without limiting the provisions of Section 6.5(a), during the period commencing as of the Effective Time and ending on the sixth anniversary of the Effective Time, Parent, the Surviving Company Corporation and its subsidiaries (and, if the Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify Merger occurs, the parent of Parent) will: (i) indemnify, defend and hold harmless (including each Indemnitee against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising to the extent such claim, action, suit, proceeding or investigation arises out of, relating to of or in connection with pertains to: (A) the fact that an Indemnified Party is any action or was omission or alleged action or omission in such Indemnitee’s capacity as a director, officer or employee of the Company or any of its Subsidiaries subsidiaries or affiliates; or (B) the Offer, the Merger, the Merger Agreement and any acts transactions contemplated hereby; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or omissions occurring or alleged to have occurred investigation the expenses (including acts attorneys’ fees) of any Indemnitee upon receipt of an undertaking by or omissions 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 6.5(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 the approval any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.5(b) unless such settlement, compromise, consent or termination includes an unconditional release of this Agreement or the Transactions or all Indemnitees from all liability arising out of such claim, action, suit, proceeding or pertaining investigation.
(c) Prior to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, 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-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”), for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period or time at or prior to the extent 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 or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Lawexisting policies; provided, that the premium for such indemnification “tail” insurance shall be subject not exceed 300% of the annual premium currently paid by the Company (in which case Parent shall cause the Surviving Corporation to obtain as much comparable insurance as available for 300% of the annual premium currently paid by the Company). If the Company or the Surviving Corporation for any limitation imposed reason fail to obtain such “tail” insurance policies as of the Effective Time, (i) the Surviving Corporation shall continue to maintain in effect, for a period of at least six years from time 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 time D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under applicable Law; and 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 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 or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that Parent and the Surviving Corporation 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 for such persons against 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, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(d) The Indemnitees to whom this Section 6.5 applies shall be third party beneficiaries of this Section 6.5. The provisions of this Section 6.5 are intended to be for the benefit of each Indemnitee and his or her successors, heirs or representatives. Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnitee in enforcing the indemnity and all Damages arising out other obligations provided in this Section 6.5.
(e) The rights of acts each Indemnitee under this Section 6.5 shall be in addition to any rights such person may have under the certificate of incorporation or omissions in such persons’ official capacity as an officerbylaws of the Company, director the Surviving Corporation or other fiduciary in any of its subsidiaries, or under any applicable Law or insurance policy or under any agreement of any Indemnitee with the Company or any of its Subsidiaries if such service was at subsidiaries.
(f) Notwithstanding anything contained in Section 9.1 or Section 9.6 hereof to the request or for contrary, this Section 6.5 shall survive the benefit consummation of the Company 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 Surviving Corporation or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parentapplicable, shall assume succeed to the obligations set forth in this Section 6.056.5.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
Directors’ and Officers’ Indemnification and Insurance. Each Party agrees that (ai) all rights to indemnification or exculpation now existing in favor of the directors and officers of ARYA, as provided in the Governing Documents of ARYA or otherwise in effect as of immediately prior to the Domestication, in either case, solely with respect to any matters occurring on or prior to the Closing, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Closing for a period of six (6) years and (ii) ARYA will perform and discharge, or cause to be performed and discharged, all obligations to provide such indemnity and exculpation during such six (6) year period. To the maximum extent permitted by applicable Law, during such six (6) year period, ARYA shall advance, or cause to be advanced, expenses in connection with such indemnification as provided in the Governing Documents of ARYA or other applicable agreements as in effect immediately prior to the Domestication. The indemnification, advancement indemnification and liability limitation or exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time Governing Documents of ARYA shall survive the Merger and shall not not, during such six (6) year period, be amended, repealed or otherwise modified for a period of six years from following the Effective Time Closing in any manner that would adversely affect the rights thereunder of individuals who, as of immediately prior to the current Closing, or former at any time prior to such time, were directors or officers of ARYA (the Company “ARYA D&O Persons”) entitled to be so indemnified, have their liability limited or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries be exculpated with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect any matters occurring on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries Closing and relating to the fact that such ARYA D&O Person was a director or agents officer of ARYA on or prior to the CompanyClosing, unless such amendment, repeal or other modification shall be is required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Business Combination Agreement (ARYA Sciences Acquisition Corp IV), Business Combination Agreement (Amicus Therapeutics, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective TimeClosing, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent Orange shall cause the Surviving Company to, maintain honor and fulfill in effect for six (6) years from all material respects the Effective Time the obligations of White under any and all indemnification agreements between White and any of its current directors’ or former directors and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts officers and any Person who becomes a director or omissions occurring in connection with this Agreement and the consummation officer of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as White or any of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy its Subsidiaries prior to the Effective Time on terms(such agreements, conditionsthe “Indemnity Agreements” and such Persons, retentions and limits of liability no less advantageous to “Indemnified Persons”). In addition, during the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to period commencing at the Effective Time, Time and ending on the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations sixth (6th) anniversary of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent Orange shall cause the Surviving Company to complyto) with all of cause the Company’s obligations, limited liability company operating agreement (and each other similar organizational documents) of the Surviving Company to contain provisions with respect to indemnification, exculpation and Parent the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions set forth in the charters and bylaws (or other similar organizational documents) of White as of the date hereof, and during such six-year period such provisions shall not be repealed, amended or otherwise modified in any manner adverse to any Indemnified Person except as required by Applicable Law.
(b) Without limiting the generality of the provisions of Section 5.4(a), during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Company shall (and Orange shall cause its Subsidiaries to comply with their respective obligations to the Surviving Company to) indemnify each Indemnified Person from and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement losses in connection with any actual Proceeding to the fullest extent that White would have been permitted to do so under Applicable Law, to the extent such Proceeding arises directly or threatened claim, action, suit, proceeding indirectly out of or investigation, whether civil, criminal, administrative pertains directly or investigative indirectly to (“Damages”), arising out of, relating to i) any action or omission or alleged action or omission in connection with (A) the fact that an such Indemnified Party is or was Person’s capacity as a director, officer officer, employee or employee agent of the Company White or any of its Subsidiaries or (B) any acts other Affiliates for such action or omissions occurring omission, or alleged to have action or omission, that occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time; provided, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent however, that if, at any time prior to the date hereofsixth (6th) anniversary of the Effective Time, any Indemnified Person delivers to White in good faith a written notice asserting a claim for indemnification under this Section 5.4(b), then such claim asserted in such notice shall survive the sixth (6th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. In the event of any such claim, proceeding, investigation or inquiry, (i) Orange or the Surviving Company shall have the right to control the fullest extent permitted by defense thereof after the CICL or any other applicable Law; providedEffective Time, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) each Indemnified Person shall be entitled at his or her sole cost and expense to retain his or her own counsel, whether or not Orange or the Surviving Company shall elect to control the defense of any such persons against claim, proceeding, investigation or inquiry. Notwithstanding anything to the contrary set forth in this Section 5.4(b) or elsewhere in this Agreement, none of Orange, the Surviving Company nor any and of their respective Subsidiaries shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless such settlement, compromise, consent or termination includes a full release of all Damages Indemnified Persons from all liability arising out of acts such claim, proceeding, investigation or omissions inquiry.
(c) Orange shall, or shall cause the Surviving Company as of the Effective Time to, obtain and fully pay the premium (in such persons’ official capacity as an officereach case, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or Orange’s expense) for the benefit extension of (i) the Company directors’ and officers’ liability coverage of White’s or any of its Subsidiaries’ existing directors’ and officers’ insurance policies and (ii) White’s or any of its Subsidiaries’ existing fiduciary liability insurance policies (collectively, “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 involving any Indemnified Person in respect of acts or omissions occurring prior to the Effective Time and with a carrier and upon terms that are reasonably acceptable to White and that are, with respect to coverage and amount, no less favorable than those of White’s or any of its Subsidiaries’ existing D&O Insurance; provided that the aggregate cost of such policy shall not exceed 300% of White’s annual premium for D&O Insurance for the year December 31, 2014.
(d) In the event the Company or If the Surviving Company (or Orange) or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger 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 the Company Orange or the Surviving Company, as the case may be, or at Parent’s option, Parent, Company shall assume all of the obligations of the Surviving Company (or Orange) set forth in this Section 5.4.
(e) The obligations set forth in this Section 6.05.
5.4 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person (eor any other Person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 5.4(c) The agreements (and covenants contained their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other Person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 5.4(c) (and their heirs and representatives). Each of the Indemnified Persons or other Persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 5.4(c) (and their heirs and representatives) are intended to be third party beneficiaries of this Section 6.05 5.4, with full rights of enforcement as if a party thereto. The rights of the Indemnified Persons (and other Persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 5.4(c) (and their heirs and representatives)) under this Section 5.4 shall be in addition to to, and not in substitution for, any other rights an Indemnified Party that such Persons may have under the memorandum charters, bylaws or other equivalent organizational documents, any and articles all indemnification agreements of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company entered into by White or any of its Subsidiaries, under the CICL or other applicable Law, Applicable Law (whether at law or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyequity).
(f) The obligations and liability of the Surviving Company, Orange and their respective Subsidiaries under this Section 5.4 shall be joint and several. Nothing in this Section 5.4 is intended to entitle any party to recover any amounts in connection with this Section 5.4 (i) to the extent that such party or any of its Affiliates has already recovered such amount pursuant to this Agreement or (ii) to the extent that White would have been prohibited from paying such amounts under the DGCL.
(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 or other agreement that is or has been in existence with respect to the Company White or any of its Subsidiaries or for any of their respective officersdirectors, directors and officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.05 5.4 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Coca-Cola Enterprises, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFrom and after the Effective Time, advancement the Surviving Company and exculpation provisions 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 indemnification agreements by and among the Company and its directors and certain executive officers as in effect at Subsidiaries under the Effective Time shall survive the Merger and 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 the rights thereunder of the current or former directors or officers of indemnification agreements between the Company or any Subsidiary of its Subsidiariesthe Company and any of their respective present or former directors and officers (collectively, the “Indemnified Parties”). The memorandum In addition, the certificate of incorporation and articles of association by-laws (or similar organizational documents) of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of Company Charter or the Company as in effect By-laws on the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company or any Subsidiary of the Company, unless such modification shall be required by Law. From and .
(b) For a period of six (6) years after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under applicable Law, indemnify and hold harmless each Indemnified Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or relating to any action or omission in their capacity as an officer, director, employee, fiduciary or agent of the Company or one of its Subsidiaries, whether occurring on or before the Effective Time. To the fullest extent permitted by Law, the Surviving Company shall, and Parent shall cause the Surviving Company to, 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 Action, (i) the Surviving Company shall, and Parent shall cause the Surviving Company to, pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, promptly after statements therefor are 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 or such Indemnified Party otherwise consents thereto in writing, and (iii) Parent and the Surviving Company shall cooperate in the defense of any such matter; provided, 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 7.04(b) shall be in addition to any rights such person may have under the certificate of incorporation or by-laws (or similar organizational documents) of the Company and the Surviving Company or any of their Subsidiaries, or under any Law or under any agreement of any Indemnified Party with the Company or any Subsidiary of the Company.
(c) Prior to the Effective Time, the Company may obtain “tail” insurance policies with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred on or prior to the Effective Time on terms with respect to coverage, deductibles and amounts no less favorable than those of such policy in effect on the date hereof for the six (6)-year period following the Effective Time at a price not to exceed 300% of the amount per annum the Company paid for such insurance in its last full fiscal year prior to the date of this Agreement. If the Company does not obtain “tail” insurance prior to the Effective Time, the Surviving Company shall either (i) cause to be obtained at the Effective Time “tail” insurance policies with a claims period of at least six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in amount and scope at least as favorable as the Company’s existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six (6) years from the Effective Time Time, if available, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective TimeCompany; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those provided under with respect to matters occurring prior to the Company’s current policiesEffective Time; provided, furtherhowever, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b7.04(c) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance; provided, and if further that in the cost event of an expiration, termination or cancellation of such insurance policy exceeds such amountcurrent policies, then Parent or the Surviving Company shall be required to obtain a policy with the greatest as much coverage as is possible under substantially similar policies for a cost amounts not exceeding to exceed such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies maximum annual amount in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesaggregate annual premiums.
(d) In the event the Company Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other person and shall not be the continuing or Surviving Company surviving 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, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume succeed to the obligations set forth in this Section 6.057.04.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 7.04 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties Party, and their his or her heirs and legal representatives, each of which whom shall be a Third Party third-party beneficiary under this Agreement.
(f) Parent shall cause the Surviving Company to perform all of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party7.04.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (Dunkin' Brands Group, Inc.), Merger Agreement (Sonic Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Parent and Merger Sub agree that all rights to indemnification and exculpation provisions from liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the indemnification agreements by and among current or former directors or officers of the Company (the “D&O Indemnified Parties”) as provided in the Certificate of Incorporation, the Bylaws or any indemnification Contract between such directors or officers and its directors and certain executive officers the Company (in each case, as in effect at on, and, in the Effective Time case of any indemnification Contracts, to the extent made available to Parent prior to, the date of this Agreement) shall survive the Merger and shall not be amended, repealed or otherwise modified for continue in full force and effect. For a period of six (6) years from the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification and advancement of expenses equivalent to the provisions of the Certificate of Incorporation and Bylaws as in effect immediately prior to the Effective Time with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Parties; provided that all rights to indemnification in respect of any claim made for indemnification within such period shall continue until the current disposition of such action or former directors or officers resolution of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawclaim. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses Parent shall be assumed by guarantee and stand surety for, and shall cause the Surviving CompanyCorporation to honor, shall survive the Merger and shall continue in full force and effect in accordance with its their respective terms, each of the covenants contained in this Section 5.7.
(b) The Surviving Prior to the Effective Time, the Company shallshall or, and if the Company is unable to, Parent shall cause the Surviving Company to, maintain in effect for six (6) years from Corporation as of or after the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company to, purchase a six (6)-year prepaid “tail” policy, with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those the coverage provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% existing policies of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance and fiduciary liability insurance, with respect to matters arising on or before the Effective Time (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Company. If such “tail” prepaid policies Surviving Corporation, and no other party shall have been obtained any further obligation to purchase or pay for insurance hereunder; provided that the Company shall not pay, and the Surviving Corporation shall not be required to pay, in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of such “tail” policy. If the Company or the Surviving Corporation for any reason fail to obtain such “tail” insurance policies prior to, as of or after the Effective Time, the Surviving Company Parent shall, and Parent shall for a period of six (6) years from the Effective Time, cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company towith respect to matters arising on or before the Effective Time; provided that after the Effective Time, maintain Parent shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of the coverage required to be obtained pursuant hereto, but in such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) case shall terminatepurchase as much coverage as reasonably practicable for such amount.
(c) Subject to the terms and conditions of The covenants contained in this Section 6.05, from and after 5.7 are intended to be for the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligationsbenefit of, and shall be enforceable by, each of the Surviving Company D&O Indemnified Parties and Parent shall cause its Subsidiaries to comply with their respective obligations heirs and shall not be deemed exclusive of any other rights to indemnify and hold harmless (including which any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigationsuch Person is entitled, whether civilpursuant to Law, criminal, administrative contract or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesotherwise.
(d) In the event the Company that Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.055.7.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (United Technologies Corp /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation provisions by the Company now existing in favor of each Person who is now, or has been at any time prior to the indemnification agreements by and among date hereof or who becomes prior to the Effective Time an officer or director of the Company and its directors and certain executive officers Subsidiaries (other than the Transfer Subsidiaries) (each an “Indemnified Party”) as provided in the Charter Documents, in each case as in effect on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 6.08 of the Company Disclosure Letter, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms and will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified Indemnified Party for a period of six (6) years from the Effective Time Time, and, in the event that any manner that would affect adversely proceeding is pending or asserted or any claim made during such period, until the rights thereunder final disposition of individuals whosuch proceeding or claim.
(b) For six (6) years after the Effective Time, to the fullest extent permitted under applicable Law, Parent and the Surviving Corporation (the “Indemnifying Parties”) shall indemnify, defend and hold harmless each Indemnified Party against any and all costs or expenses (including reasonable attorney’s fees and costs of investigation), losses, claims, damages, liabilities, fees, judgments and fines arising in whole or in part out of actions or omissions in such Indemnified Party’s capacity as officer or director of the Company occurring at or prior to the Effective TimeTime (including in connection with the transactions contemplated by this Agreement), were directors, officers, employees, fiduciaries to the fullest extent permitted by applicable Law or agents required by the Charter Documents and any agreement set forth in Section 6.08 of the CompanyCompany Disclosure Letter. Parent shall or shall cause the Surviving Corporation to pay all costs and expenses in connection with such indemnification reasonably promptly as statements therefor are received, unless subject to the Surviving Corporation’s receipt of an undertaking by such modification shall Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction or is otherwise agreed that such Indemnified Party is not entitled to be required by Law. From and after indemnified under applicable Law or under the Effective Time, Charter Documents or any agreement set forth on Section 6.08 of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsDisclosure Letter.
(bc) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, (i) maintain in effect for a period of six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to after the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered therebyif available, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor current policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company immediately prior to the Effective Time, Time (provided that the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such Corporation may substitute therefor policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(bthat are (A) shall terminate.
(c) Subject issued by an insurer that has an A.M. Best rating at least equal to the Company’s insurer as of the date hereof; and (B) of at least the same coverage and amounts and containing terms and conditions of this Section 6.05, from that are not less advantageous to the directors and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee officers of the Company or any of and its Subsidiaries or (Bother than the Transfer Subsidiaries) any acts or omissions occurring or alleged when compared to have occurred the insurance maintained by the Company as of the date hereof), (including acts or omissions ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its Subsidiaries (other than the Transfer Subsidiaries) when compared to the insurance maintained by the Company as of the date hereof, in each case with respect to the approval of this Agreement or the Transactions or claims arising out of or pertaining relating to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to events which occurred before or at the Effective Time, Time (including in connection with the transactions contemplated by this Agreement) or (iii) if coverage on terms and conditions that are not less advantageous to the extent provided under directors and officers of the Company’s or such Company and its Subsidiaries (other than the Transfer Subsidiaries’ respective organizational and governing documents or agreements in effect on ) when compared to the insurance maintained by the Company as of the date hereof is not available, obtain the best available coverage; provided, however, that in no event will the Surviving Corporation be required to expend an annual premium for such coverage in excess of three hundred percent (true and complete copies 300%) of which shall have been delivered to Parent the last annual premium paid by the Company for such insurance prior to the date hereofof this Agreement, which amount is set forth on Section 6.08(c) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company Disclosure Letter (the “Maximum Premium”). If such insurance coverage cannot be obtained at an annual premium equal to or any less than the Maximum Premium, the Surviving Corporation will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of its Subsidiariesdirectors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium. The parties agree that the Company may purchase “tail” coverage on the terms set forth in this Section 6.08(c) prior to the Closing with the prior consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The obligations of Parent and the Surviving Corporation under this Section 6.08 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.08 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08, each of whom may enforce the provisions of this Section 6.08).
(e) In the event the Company or Parent, the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving 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 the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume all of the obligations set forth in this Section 6.056.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (Bishop Infrastructure III Acquisition Company, Inc.), Merger Agreement (Westway Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFrom and after the Effective Time, advancement the Interim Surviving Corporation, and exculpation provisions from and after the LLC Effective Time, the Final Surviving Entity, shall indemnify and hold harmless all past and present officers and directors of the Company to the same extent and in the same manner such persons are indemnified as of the date of this Agreement by the Company pursuant to any indemnification agreements by and among between the Company and its directors and certain executive officers as of the date hereof, and, to the extent applicable, the DGCL, the LLC Act, the Company Certificate of Incorporation, the Company By-laws, the Certificate of Formation and the Limited Liability Company Agreement of the Final Surviving Entity for acts or omissions occurring at or prior to the Effective Time or the LLC Effective Time, as the case may be, and the Parent shall guarantee such performance by the Interim Surviving Corporation and the Final Surviving Entity. The Certificate of Incorporation and the By-laws of the Interim Surviving Corporation, and the Certificate of Formation and the Limited Liability Company Agreement of the Final Surviving Entity will contain provisions with respect to exculpation and indemnification that are at least as favorable to the indemnified parties as those contained in the Company Certificate of Incorporation and the Company By-laws as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or immediately prior to the Effective Time, were directors, officers, employees, fiduciaries employees or agents of the Company, unless such a modification shall be is required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shallFor a period of six years from the Effective Time, and Parent shall cause the Interim Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement Corporation and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Final Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 CompanyEntity, as the case may be, to maintain in effect (or at Parent may instead elect to maintain pursuant to Parent’s optionpolicy or policies) for the benefit of the Company’s current directors and officers an insurance and indemnification policy that provides coverage for acts or omissions occurring prior to the Effective Time that is substantially equivalent to the Company’s existing policy on terms with respect to coverage in the aggregate no less favorable than those of such policy in effect on the date hereof, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that in lieu of the foregoing, prior to the Effective Time, Parent may request that the Company obtain, and upon such request the Company agrees to obtain, in consultation with Parent, shall assume “tail” insurance policies as of the obligations set forth in this Section 6.05Effective Time with a claims period of six years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the Company’s current directors and officers.
(ec) The agreements This Section 5.11 shall survive the consummation of the Merger, is intended to benefit the Company, the Interim Surviving Corporation and covenants contained in this Section 6.05 each indemnified party, shall be in addition to any other rights an Indemnified Party may have under the memorandum binding on all successors and articles of association assigns of the Company or any of its Subsidiaries (or equivalent constitutional documents)Interim Surviving Corporation and Parent, or any agreement between an Indemnified Party and shall be enforceable by the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwiseindemnified parties. The provisions of this Section 6.05 shall survive the consummation of the Merger and 5.11 are intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified Parties indemnified party, his or her heirs, and their heirs his or her representatives and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified are in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended addition to, shall be construed to or shall releaseand not in substitution for, waive or impair any other rights to directors’ and officers’ insurance claims under any policy indemnification or other agreement contribution that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies Person may have by contract or other agreementsotherwise.
Appears in 2 contracts
Samples: Merger Agreement (Emergent BioSolutions Inc.), Merger Agreement (Trubion Pharmaceuticals, Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationWithout limiting any additional rights that any Person may have under any agreement, advancement document, law or Company Plan, from and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each present (as of the Effective Time) and former officer, director or employee of the Company (the "Indemnified Parties"), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, "Costs"), incurred in connection with any 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, fiduciary or agent of the Company, whether asserted or claimed prior to, at or after the Effective Time, to the extent provided under applicable Law and the Company’s Certificate of Incorporation or Bylaws as at the date hereof.
(b) Parent and the Company agree that all rights to indemnification and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect from liabilities for acts or omissions occurring at or prior to the Effective Time shall survive the Merger (and shall not be amended, repealed or otherwise modified rights for a period advancement of six years from the Effective Time expenses) now existing in any manner that would adversely affect the rights thereunder favor of the current or former directors or officers of the Company as provided in its Certificate of Incorporation or Bylaws (or comparable organizational documents) and any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association or other agreements of the Company as in effect on the date hereofof this Agreement shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and Parent shall cause such survive the Merger and shall continue in full force and effect in accordance with their terms. Further, 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 presently set forth in the Company’s Certificate of Incorporation and 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 adversely affect adversely the rights thereunder of individuals whoany such individuals, at or except as amendments may be required by the DGCL during such period.
(c) Parent understands and agrees that, prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company intends to obtain a six (6) year "tail" insurance policy that provides coverage on terms no less favorable than the coverage provided under the Company, unless ’s directors and officers insurance policy in effect on the date of this Agreement for the Persons who are covered by such modification shall be required by Law. From and after policy on the date of this Agreement for events occurring prior to the Effective Time; provided, any agreement of any Indemnified Party with however, without Parent’s prior written consent, the Company or shall not pay more than one hundred fifty percent (150%) of current annual premium to purchase such policy; and provided further, however, that prior to purchasing any such policy, the Company shall afford Parent the opportunity to purchase a substitute policy which (i) has an effective term of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time Time, (ii) covers those persons who are currently covered by the current Company’s directors’ and officers’ liability insurance policies maintained by policy in effect as of the Company with respect to matters date hereof for actions and omissions occurring on or prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”iii) on contains terms with respect to coverage and amount conditions that are no less favorable to the Indemnified Parties insured than those of the Company’s directors’ and officers’ insurance policy in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) 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.
(e) In the event the Company or that the Surviving Company Corporation or any of their respective its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company 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, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, Corporation shall assume succeed to the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 6.7. In addition, the Surviving Corporation shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles not distribute, sell, transfer or otherwise dispose of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended assets in a manner that would reasonably be expected to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and render the Surviving Company Corporation unable to satisfy its obligations under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party6.7.
(f) Nothing Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ enforcing the indemnity and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification obligations provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements6.7.
Appears in 2 contracts
Samples: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Etrials Worldwide Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFrom and after the Effective Time, advancement Parent shall cause the Surviving Company to fulfill and exculpation provisions honor the obligations of the Company pursuant to any indemnification agreements by listed in Part 6.7(a) of the Company Disclosure Schedule between the Company, on the one hand, and among the officers and directors of the Company and its directors and certain executive officers as in effect at the Effective Time other Acquired Companies (collectively, the “Indemnified Persons”), on the other hand (the “Indemnification Agreements”), which agreements shall survive the Merger and continue in full force and effect in accordance with their respective terms as in effect on the date of this Agreement, and any indemnification, exculpation or advancement of expenses provisions under the Articles of Association of the Company as in effect immediately prior to the date hereof; provided that such obligations shall be subject to any limitation imposed from time to time by Legal Requirements.
(b) During the period commencing at the Effective Time and ending on the seventh (7th) anniversary of the Effective Time, Parent shall cause the Articles of Association of the Surviving Company to contain provisions with respect to indemnification and exemption that are at least as favorable to the Indemnified Persons as those contained in the Company’s Articles of Association as in effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of six seven years from the Effective Time Date in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or Indemnified Persons thereunder, unless such modification is required by Legal Requirements.
(c) At any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or time prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by have the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current right to purchase a “tail” directors’ and officers’ liability insurance policies maintained by policy covering the persons who were directors and officers of the Company and the other Acquired Companies immediately prior to the Effective Time, with respect to matters their acts or omissions occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and that by its terms shall provide coverage until the consummation of the Transactions seventh (the parties covered thereby, the “Indemnified Parties”7th) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as anniversary of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing termssuch purchase shall be in consultation with Parent and, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid if requested by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionParent, the Company may and, at shall work with Parent’s request, insurance brokers in connection with the Company shall, purchase a six (6)-year of such “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by policy. In the Company. If event the Company purchases such “tail” prepaid policies have been obtained by the Company directors’ and officers’ liability insurance policy prior to the Effective Time, the Surviving Company shall, shall (and Parent shall cause the Surviving Company to, ) maintain such policies “tail” directors’ and officers’ liability insurance policy in full force and effect and continue to honor their respective obligations thereunder for so long as such “tail” directors’ and officers’ liability insurance policy shall be maintained in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company If Parent or the Surviving Company or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger merger, or (ii) transfers transfer all or substantially all of its properties and assets to any person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Surviving Company or shall assume all of the obligations of Parent and/or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations Company set forth in this Section 6.056.7.
(e) The agreements and covenants contained in rights of each Indemnified Person under this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 6.7 shall survive the consummation of the Merger and are intended to be for the benefit ofbenefit, and shall be enforceable by, each of Indemnified Person. Parent shall pay all expenses, including attorney fees, that may be incurred by any Indemnified Person in enforcing the Indemnified Parties indemnity and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The other obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as 6.7, to adversely affect the rights of any Indemnified Party without the consent of extent such Indemnified Party.
(f) Nothing in this Agreement is intended to, Person shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been the prevailing party in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementsenforcement action.
Appears in 2 contracts
Samples: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement (Ezchip Semiconductor LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationGigOptix shall, advancement or shall cause the Surviving Corporation to, fulfill and exculpation provisions honor the obligation of the indemnification agreements by Endwave to Endwave’s present and among the Company and its former directors and certain executive officers as in effect at (the Effective Time shall survive the Merger “Indemnified Directors and 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable Officers”) pursuant to the intended beneficiaries with respect to exculpation terms of Endwave’s Amended and indemnification Restated Certificate of liability Incorporation and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsbylaws.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations Notwithstanding anything else set forth in this Section 6.05.
Agreement, (ei) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 5.11 shall survive the consummation of the Merger and are Merger, (ii) is intended to be for benefit the benefit ofIndemnified Directors and Officers and their respective heirs and (iii) is in addition to, and shall be enforceable bynot in substitution for, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and any other rights to indemnification or contribution that any such Person may have against GigOptix or the Surviving Company under this Corporation first arising after the Closing Date by contract or otherwise. This Section 6.05 5.11 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party Director and Officer under this Section 5.11 without the written consent of such affected Indemnified PartyDirector and Officer.
(fc) Nothing in this Agreement is intended toFrom the Effective Time until the sixth anniversary of the Effective Time, neither GigOptix nor the Surviving Corporation shall be construed take any action to or shall release, waive or impair terminate any rights liability insurance that Endwave acquires and fully pays for prior to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence the Effective Time with respect to the Company or any of its Subsidiaries or claims arising against Endwave’s officers and directors with respect to their respective officers, acts and omissions as directors and employees, it being understood and agreed officers of Endwave occurring prior to the Effective Time (the “Tail Policy”); provided that the indemnification provided Surviving Corporation may, but under no circumstances shall be obligated to, substitute a policy of at least the same coverage containing terms and conditions that, in the aggregate, are no less advantageous. Endwave shall purchase the Tail Policy, which for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementsclarity, would constitute a Merger Expense.
Appears in 2 contracts
Samples: Merger Agreement (Endwave Corp), Merger Agreement (GigOptix, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions bye-laws (or comparable organizational documents) of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Amalgamated Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation exculpation, advances of expenses and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association bye-laws (or comparable organizational documents) of the Company as in effect on the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries former or agents present directors or officers of the Company, unless such modification shall be required by Lawapplicable Laws. From The indemnification, advancement of expenses and after exculpation provisions of the Effective Time, any agreement of any Indemnified Party with indemnification agreements and employment agreements by and among the Company or any the Company Subsidiaries and their respective directors and officers, as in effect as of its Subsidiaries regarding exculpation or indemnification the date hereof and set forth under Section 7.05(a) of liability or advancement of expenses shall be assumed by the Surviving CompanyCompany Disclosure Letter, shall survive the Merger and shall continue in full force and effect Amalgamation in accordance with its their terms.
(b) The Surviving Amalgamated Company shall, and Parent shall cause the Surviving Amalgamated Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company or the Company Subsidiaries with respect to matters occurring or allegedly occurring at or prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) ), on terms with respect and subject to coverage and amount conditions no less favorable to the Indemnified Parties than those in effect as of on the Effective Timedate hereof and with reputable carriers having a rating comparable to the current carrier; provided, however, that the Surviving Amalgamated Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amountpolicy. In addition, the Company may andmay, at Parent’s request, the Company shallits option, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions terms and limits of liability subject to conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Amalgamated Company shall, and Parent shall cause the Surviving Amalgamated Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Amalgamated Company under this Section 6.05(b7.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.057.05, from and after the Effective Time, the Surviving Amalgamated Company shall comply (with all of its obligations, and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations obligations, to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties present and former officers and directors thereof (and of the Company) against any and all costs or expenses (including reasonable and documented attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities liabilities, obligations (including reasonable and documented experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs), fines and amounts paid in settlement in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigationinvestigation (“Indemnity Proceeding”), whether civil, criminal, administrative or investigative investigative, and whether initiated by the Company, the Amalgamated Company, any Governmental Authority or any other party (“Damages”), based in whole or in part on, arising out of, relating to or in connection with with, (A1) the fact that an Indemnified Party such person is or was a director, officer officer, employee, fiduciary or employee agent of the Company or any of its Subsidiaries Company Subsidiary, or (B2) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Company Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by any applicable Laws, including the CICL approval of this Agreement, the Amalgamation or any the other applicable LawTransactions or arising out of or pertaining to the Transactions; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable LawLaws; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries Company Subsidiary if such service was at the request or for the benefit of the Company or any Company Subsidiary; provided, further, that, in each case of clauses (i) and (ii), if required by any applicable Laws, such person shall have provided the Amalgamated Company with a written undertaking to repay any and all amounts advanced if it shall ultimately be determined that he or she is not entitled to indemnification under or pursuant to this Section 7.05. In any event any Indemnity Proceeding is brought against a person entitled to indemnity under this Section 7.05, Parent and Amalgamated Company shall each use its Subsidiariescommercially reasonable efforts to cooperate in the vigorous defense of such Indemnity Proceeding; provided, that none of Parent, the Amalgamated Company or a person entitled to indemnity shall settle, compromise or consent to the entry of any judgment in such Indemnity Proceeding without the prior written consent of the others (such consent not to be unreasonably withheld or delayed).
(d) In The obligations of Parent and the event Amalgamated Company and the Company Subsidiaries under this Section 7.05 shall not be terminated or modified by such parties in a manner so as to adversely affect any Indemnified Party or any other person entitled to the benefit of this Section 7.05, to whom this Section 7.05 applies, without the consent of such affect Indemnified Party or person, as the case may be. If Parent or the Surviving Amalgamated Company or any of their respective Subsidiaries or any of their respective successors or assigns shall (i) consolidates consolidate with, amalgamate with or merges merge into any other person corporation or entity and shall not be the continuing or Surviving Amalgamated Company or entity of such consolidation consolidation, amalgamation or merger or (ii) transfers transfer all or substantially all of its properties and assets to any person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent or the Surviving Amalgamated Company, as the case may be, or at Parent’s option, Parent, shall succeed to and assume all of the obligations set forth in this Section 6.057.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Amalgamation Agreement, Amalgamation Agreement (Global Sources LTD /Bermuda)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for For a period of six (6) years from after the Effective Time Closing Date, in the event of any manner that would affect adversely the rights thereunder of individuals whothreatened or actual Action, whether civil, criminal or administrative, in which any person who is now, or has been at or any time prior to the Effective TimeClosing, were directors, officers, employees, fiduciaries a director or agents officer of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) is, or is threatened to be, made a party thereto based in whole or in part on terms with respect to coverage (i) the fact that such person is or was a director or officer of the Company or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before, on or after the Closing, the Company shall indemnify and amount no less favorable hold harmless such person from and against such Action to the Indemnified Parties than those full extent required under, and subject to the terms and conditions of, the Company’s Articles of Organization as in effect as of on the Effective Time; provideddate hereof.
(b) Prior to the Closing Date, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided shall purchase an extended reporting period endorsement under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance coverage for the Company’s directors and officers in a form acceptable to the Sellers’ Representative that shall provide such directors and officers with coverage for six years following the Effective Time of not less than the existing coverage and have other terms not materially less favorable to the insured persons than the directors’ and officers’ liability insurance coverage presently maintained by the Company. If The cost of such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent coverage shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminatebe a Seller Transaction Expense.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 6.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and such Indemnified Party’s estate, administrators, executors, heirs and representatives, and nothing herein shall affect any indemnification rights that any such person may have under the Company’s Organizational Documents, any contract or applicable law.
(d) The obligations of the Indemnified Parties Buyer and their heirs the Company under this Section 6.8 shall continue in full force and legal representatives, each of which shall be effect for a Third Party beneficiary period commencing as of the Closing and ending as of the sixth anniversary of the Closing Date; provided, that all rights to indemnification in respect of any matter for which indemnification under this Section 6.8 has been asserted or made within such period shall continue until the final disposition of such matter.
(e) In the event that all or substantially all of the business or assets of the Company are sold, whether by merger, consolidation, sale of assets or securities or otherwise, in one transaction or a series of transactions, then the Buyer and the Company shall, in each such case, take action to ensure that the successors and assigns of the Company assume the obligations set forth in this Section 6.8. The provisions of this Section 6.05. The obligations 6.8 shall apply to all of Parent the successors and assigns of the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified PartyCompany.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mercury Computer Systems Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Parent and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner Sub agree that would adversely affect the all rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed for acts 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, omissions occurring at or prior to the Effective Time, were 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, partners, members, trustees or employees, fiduciaries or agents as the case may be, of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or the Company Subsidiaries as provided in the Company Charter or the Company Bylaws or each of the Company Subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) or in any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, agreement shall survive the Merger and shall continue in full force and effect in accordance with its their terms.
(b) The Surviving Company shall, . Parent and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event Entity shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Entity to) (i) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the fullest extent required by: (x) the Company to complyCharter or Company Bylaws, or the articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) with all of any of the Company’s obligationsCompany Subsidiaries, in each case, as in effect on the date of this Agreement, (y) any indemnification agreement of the Company or the Company Subsidiaries or other applicable contract as in effect on the date of this Agreement and listed in the Company Disclosure Letter, or (z) applicable Law, and each (ii) not amend, repeal or otherwise modify any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the rights thereunder of any Indemnitees.
(b) Without limiting the provisions of Section 6.9(a), during the period commencing as of the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, Parent and the Surviving Company Entity shall (and Parent shall cause its Subsidiaries to comply with their respective obligations to the Surviving Entity to): (i) indemnify and hold harmless (including each Indemnitee against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to (“Damages”), arising out of, relating to x) any action or omission or alleged action or omission in connection with (A) the fact that an Indemnified Party is or was such Indemnitee’s capacity as a director, officer officer, partner, member, trustee or employee of the Company or any of its Subsidiaries the Company Subsidiaries, or (By) this Agreement and any acts of the transactions contemplated hereby, including the Merger; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or omissions occurring or alleged to have occurred investigation the expenses (including acts attorneys’ fees) of any Indemnitee upon receipt of an undertaking by or omissions 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 6.9(b) or elsewhere in this Agreement, neither Parent nor the Surviving Entity shall (and Parent shall cause the Surviving Entity not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to the approval any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.9(b) unless such settlement, compromise, consent or termination includes an unconditional release of this Agreement or the Transactions or all Indemnitees from all liability arising out of such claim, action, suit, proceeding or pertaining investigation, and does not include an admission of fault or wrongdoing by any Indemnitee. Notwithstanding anything to the Transactions contrary set forth in this Agreement, Parent or the Surviving Entity (i) shall not be liable for any settlement effected without their prior written consent and actions (ii) shall not have any obligation hereunder to enforce this provision 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 any other indemnification or advancement right the Surviving Entity the amount of any Indemnified Partyall such expenses theretofore advanced pursuant hereto.
(c) prior Prior to or at the Effective Time, the Company shall or, if the 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 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 extent 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 and with policy limits no less than the limits on the Company’s existing policies as long as the annual premium does not exceed 110% of the annual premium under the Company’s existing policies. If the Company or the Surviving Entity for any reason fails to obtain such Subsidiaries’ respective organizational “tail” insurance policies as of the Effective Time, (i) the Surviving Entity shall continue to maintain in effect, for a period of at least six (6) years from and governing documents or agreements after the Effective Time, the D&O Insurance in effect on 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 (true and complete copies ii) Parent shall provide, or shall cause the Surviving Entity to provide, for a period of which shall have been delivered to Parent 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 date hereofEffective 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 (which may be provided under Parent’s D&O Insurance policy) and to or, if substantially equivalent insurance coverage is unavailable, the fullest extent permitted by the CICL or any other applicable Lawbest available coverage; provided, however, that Parent and 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 for such indemnification insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Entity shall be subject obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(d) The Indemnitees to whom this Section 6.9 applies shall 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 attorney’s 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 limitation imposed from time to time 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; and (ii) such persons against Law or under any and all Damages arising out agreement of acts any Indemnitee or omissions in such persons’ official capacity as an officer, director or other fiduciary in any employee with the Company or any of its the Company Subsidiaries if such service was at listed in Section 4.12(a)(iv) the request Company Disclosure Letter.
(f) Notwithstanding anything contained in Section 9.1 or for Section 9.7 to the benefit contrary, this Section 6.9 shall survive the consummation of the Company 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 Indemnitees and their successors, heirs or representatives. In the event that Parent or the Surviving Entity or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 the Company Parent or the Surviving CompanyEntity, as the case may be, or at Parent’s option, Parentapplicable, shall assume succeed to the obligations set forth in this Section 6.05.
(e) 6.9. The agreements parties acknowledge and covenants contained in agree that Parent guarantees the payment and performance of the Surviving Entity’s obligations pursuant to this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party6.9.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (Nationwide Health Properties Inc), Merger Agreement (Ventas Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Effective Time, Parent and the Amalgamated Company shall cause all rights to indemnification, advancement of expenses and exculpation provisions now existing in favor of any present or former director or officer of the indemnification agreements by and among Company or any of its Subsidiaries (the “Indemnified Parties”) as provided in the Company Organizational Documents, or in agreements, copies of which have been provided to Parent prior to the date of this Agreement, between an Indemnified Party and the Company or one of its directors and certain executive officers as Subsidiaries or otherwise in effect at on the Effective Time shall date of this Agreement to survive the Merger Amalgamation and shall not be amended, repealed or otherwise modified to continue in full force and effect for a period of not less than six (6) years from after the Effective Time Time, or, if longer, for such period as is set forth in any manner that would adversely affect applicable agreement with an Indemnified Party in effect on the rights thereunder date of this Agreement, copies of which have been provided to Parent prior to the current date of this Agreement. Parent shall guarantee such performance by the Amalgamated Company.
(b) Parent shall cause the Amalgamated Company to indemnify all Indemnified Parties to the fullest extent permitted by applicable Laws with respect to all acts and omissions arising out of or former relating to their services as directors or officers of the Company or its Subsidiaries occurring prior to or at the Effective Time. If any of its Subsidiaries. The memorandum and articles of association of Indemnified Party is or becomes involved in any Legal Action in connection with any matter occurring prior to or at the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereofEffective Time, and Parent shall cause the Amalgamated Company to pay as incurred such provisions Indemnified Party’s legal fees, costs and expenses incurred in connection with such Legal Action, subject to the Amalgamated Company’s receipt of an undertaking by or on behalf of such Indemnified Party, if and only to the extent required by applicable Law, to repay such legal fees, costs and expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be amendedindemnified.
(c) Prior to the Effective Time, repealed or otherwise modified the Company shall and, if the Company is unable to, Parent shall cause the Amalgamated Company to, as of the Effective Time, obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall which obligation may be required satisfied by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time extending the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid Company or by providing for policies have been obtained of at least the same coverage and amounts containing terms and conditions which are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Effective Time so long as the Amalgamated Company is not required to pay an annual premium in excess of 300% of the last annual premium paid by the Company for such insurance prior to the Effective Timedate of this Agreement (such 300% amount being the “Maximum Premium”). If the Amalgamated Company is unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, the Surviving Amalgamated Company shall, and Parent shall cause instead obtain as much comparable insurance as possible for an annual premium equal to the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateMaximum Premium.
(cd) Subject to the terms and conditions of The covenants contained in this Section 6.05, from and after 5.9 are intended to be for the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligationsbenefit of, and shall be enforceable by, each of the Surviving Company Indemnified Parties and Parent shall cause its Subsidiaries to comply with their respective obligations heirs and legal representatives and shall not be deemed exclusive of any other rights to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that which an Indemnified Party is entitled, whether pursuant to Law, Contract or was a director, officer or employee of otherwise.
(e) In the event that the Amalgamated Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with, amalgamates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation consolidation, amalgamation 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 the Company or the Surviving Amalgamated Company, as the case may be, or at Parent’s option, Parent, shall assume succeed to the obligations set forth in this Section 6.055.9.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent, Lux Sub and Merger Sub agree that all rights to indemnification, advancement of expenses, exculpation, limitation of liability and exculpation provisions any and all similar rights now existing in favor of each present and former director, officer, employee and agent of Company (collectively, the indemnification agreements by and among the Company and its directors and certain executive officers "Indemnified Parties") as provided in Company's present certificate of incorporation, by-laws or contractual arrangement in effect at on the Effective Time date hereof, shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time, 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, who at or any time prior to the Effective Time, Time were directors, officers, employees, fiduciaries employees or agents of the Company, unless such modification shall be required by Law. From , and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by Parent and Lux Sub agree to cause the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance Corporation to comply with its termsobligations thereunder and hereby guarantee the indemnification obligations referred to in this Section 7.03.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 7.03 or will make or cause to be made proper provision shall be made so that the successors and assigns of the Company or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the indemnification obligations set forth in 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 6.057.03 as a condition to such merger, consolidation or transfer becoming effective.
(ec) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 7.03 are (i) intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified Parties and their heirs (ii) in addition to, and legal representativesnot in substitution for, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated any other rights to indemnification or modified in contribution that any such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyperson may have by contract or otherwise.
(fd) Nothing For a period of three years after the Effective Time, Parent and Lux Sub shall use their respective best efforts to maintain in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to effect the directors’ ' and officers’ ' liability insurance claims under policies maintained by Company; provided, however, that in no event shall Parent or Lux Sub be required to expend in any one year in excess of 150% of the annual premium currently paid by Company for such coverage and provided further, that if the premium for such coverage exceeds such amount, Parent or Lux Sub shall purchase a policy or other agreement that is or has been in existence with respect to the Company or any greatest coverage available for such 150% of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementsannual premium.
Appears in 2 contracts
Samples: Merger Agreement (Netcreations Inc), Agreement and Plan of Merger (Seat Pagine Gialle Spa)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationIt is understood and agreed that the Company shall defend, advancement indemnify and exculpation provisions hold harmless, and after the Effective Time, the Surviving Corporation and the Parent shall, jointly and severally, defend, indemnify and hold harmless, each present and former employee, agent, director and officer of the indemnification agreements by Company (the "Indemnified Parties") to the fullest extent required or permitted under (a) applicable law and among the Company (b) as provided in their respective charters and its directors by-laws, which rights to be defended, indemnified and certain executive officers as in effect at the Effective Time held harmless shall survive the Merger and shall continue in full force and effect without time limitation from and after the Effective Time. Without limiting the foregoing, the Company, and after the Effective Time the Surviving Corporation and the Parent, will periodically advance expenses as incurred with respect to the foregoing, to the fullest extent permitted by applicable law; provided the person to whom the expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. In addition, the Articles of Incorporation and the By-Laws of the Surviving Corporation with respect to indemnification, 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from individuals who at the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries agents or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee employees of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged otherwise entitled to have occurred (including acts or omissions with respect indemnification pursuant to the approval Company's Articles of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Incorporation. In the event the Company or that the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) Corporation transfers all or substantially all of its properties and assets operations to any person, then, and in each such caseanother corporation or other entity, proper provision shall be made so that the successors and assigns successor or transferee thereof shall assume any remaining obligations of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations Corporation set forth in this Section 6.054.8.
(eb) The agreements Parent shall cause the Company either (x) to continue in force for at least five years from the Closing Date, the Company's policy insuring its officers and covenants contained in this Section 6.05 shall be in addition directors for errors and omissions liability at least with respect to any other rights an Indemnified Party may have under acts and omissions through the memorandum Closing Date, or (y) procure equivalent insurance.
(c) Each current officer and articles of association director of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be have rights as a Third Party third party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated 4.8 as separate contractual rights for his or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyher benefit.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Medarex Inc), Agreement and Plan of Reorganization (Medarex Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) 8.6.1. The Buyer and the Company agree that all rights to indemnification, advancement of expenses and exculpation provisions from liability for or in connection with acts or omissions occurring at any time prior to or on the Closing Date that now exist in favor of any Person who prior to or on the Closing Date is or was a current or former director, officer or employee of the indemnification agreements by and among Company, or who at the request of the Company served prior to or on the Closing Date as a director, officer, member, manager, employee, trustee or fiduciary of any other entity of any type (each a “D&O Indemnified Person”), including as provided in the Organizational Documents of the Company, or in any agreement between a D&O Indemnified Person and its directors the Company (an “Indemnity Agreement”), will survive the Closing and certain executive officers will continue in full force and effect for the six (6) year period following the Closing Date, to the fullest extent permitted under applicable law. In furtherance (and not in limitation of) the foregoing, for the six (6) year period following the Closing Date, the Buyer will cause the Company to, and the Company will (i) maintain in the Organizational Documents of the Company provisions with respect to indemnification, advancement of expenses and exculpation from liability that in each such respect are at least as favorable to each D&O Indemnified Person as those contained in the Company’s Organizational Documents, as applicable, as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any D&O Indemnified Person and (ii) continue in existence each Indemnity Agreement without termination, revocation, amendment or other modification that would adversely affect the current or former directors or officers rights thereunder of the Company or any of its SubsidiariesD&O Indemnified Person.
8.6.2. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable In addition to the intended beneficiaries with respect to exculpation other rights of each D&O Indemnified Person provided for in this Section 8.6 and indemnification of liability not in limitation thereof, from and advancement of expenses than are set forth in after the memorandum and articles of association of Closing, for the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from year period following the Effective Time in any manner that would affect adversely Closing Date, the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Buyer shall, and Parent shall cause the Surviving Company (each, a “D&O Indemnifying Party”) to, maintain in effect for six each case to the fullest extent permitted under applicable law, (6a) years indemnify and hold harmless (and release from any liability to the Effective Time Buyer or the current directorsCompany), each D&O Indemnified Person against all losses, claims, damages, liabilities, awards, orders, decrees, rulings, judgments, fines, penalties, settlement agreements, amounts paid in settlement, costs, charges, expenses and fees (including attorneys’ and officersexperts’ liability insurance policies maintained by the Company fees and expenses) based upon, arising out of, in respect of or in connection with any threatened, pending or completed claim, subpoena or other legal process, demand, action, arbitration, suit or proceeding, whether criminal, civil, administrative or investigative, based upon, arising out of, in respect to matters occurring prior to the Effective Time, including of or in connection with any actual or claimed acts or omissions occurring at any time prior to or on the Closing Date (including in respect of any actual or claimed acts or omissions based upon, arising out of, in respect of or in connection with the negotiation or approval of this Agreement and the consummation of the Transactions Contemplated Transactions) (each, a “D&O Indemnifiable Claim”) and (b) advance to such D&O Indemnified Persons all costs, charges, expenses and fees (including attorneys’ and experts’ fees and expenses) paid or incurred by a D&O Indemnified Person in connection with any D&O Indemnifiable Claim, promptly after receipt of reasonable supporting documentation thereof. Any D&O Indemnifiable Claim, and any claim for advancement, in each case pending or asserted prior to or within the parties six (6) year period following the Closing Date shall continue to be covered therebyby this Section 8.6 until the later of such time that such D&O Indemnifiable Claim is fully and finally disposed of with no further exposure of a D&O Indemnified Person of any kind or all settlement agreements, judgments, orders, awards, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully and finally satisfied.
8.6.3. On or before the Closing Date, the Buyer will obtain for the Company, and, for a six (6) year period following the Closing Date, the Buyer will cause the Company to maintain in effect, with no lapse in coverage, one or more “tail” or “runoff” directors’ and officers’ liability, employment practices liability and fiduciary liability insurance policies covering actual or claimed acts or omissions of any D&O Indemnified Parties”) Person occurring on or before the Closing Date, in each case on terms with respect to coverage coverage, retentions, amounts and amount no less other material terms at least as favorable to the such D&O Indemnified Parties than Persons as those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof hereof. The Buyer and the Seller shall each be responsible for fifty percent (true and complete copies 50%) of which shall have been delivered to Parent prior to the date hereof) and to cost of the fullest extent permitted by premium for such policy (it being understood that the CICL or any other applicable Law; provided, that such indemnification Seller’s share of the cost shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity treated as an officer, director or other fiduciary in a Transaction Expense).
8.6.4. If the Company (or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns assigns) (ia) consolidates with or merges into any other person Person and shall is not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger merger, or (iib) transfers all or substantially all of its properties and assets to any personother Person (including by dissolution, liquidation, assignment for the benefit of creditors or similar action), then, and in each such case, the Buyer will cause proper provision shall to be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume such other Person fully assumes the obligations set forth in this Section 6.058.6.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise8.6.5. The provisions of this Section 6.05 8.6 shall survive the consummation of the Merger and are intended to Closing. This Section 8.6 shall be for the irrevocable benefit of, and shall be enforceable by, each of the D&O Indemnified Parties Person and their heirs his or her respective heirs, executors, administrators, estates, successors and legal representativesassigns, and each of which such Person shall be a Third Party an express intended third party beneficiary of this Agreement for such purposes. Buyer shall pay, or shall cause the provisions of this Section 6.05. The obligations of Parent Company to pay, as and when incurred by any Person referred to in the Surviving Company immediately preceding sentence, all fees, costs, charges and expenses incurred by such Person in enforcing such Person’s rights under this Section 6.05 8.6. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 8.6 shall not be terminated terminated, revoked, modified or modified amended in such a manner any way so as to adversely affect any Person referred to in the second sentence of this Section 8.6.5 without the written consent of such Person. With respect to any right to indemnification or advancement for actual or claimed acts or omissions occurring prior to or on the Closing Date, the Company shall be the indemnitor of first resort, responsible for all such indemnification and advancement that any D&O Indemnified Person may otherwise have rights to from any direct or indirect shareholder or equity holder of the Company (or any Affiliate of such shareholder or equity holder) and without right to seek subrogation, indemnity or contribution. Each of the Company and the Buyer further agrees that no advance or prepayment by any party other than the Company as the primary indemnitor on behalf of any D&O Indemnified Person with respect to any claim for which such D&O Indemnified Person has sought indemnification from the Company shall affect the foregoing and that any such secondary indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all the rights of any recovery of the D&O Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to Person against the Company and the Company hereby irrevocably releases any such secondary indemnitor from, and irrevocably waives and relinquishes any right to assert against any such secondary indemnitor, any and all claims for contribution, subrogation or any other recovery of its Subsidiaries or their respective officersany kind in respect thereof. Each of the Company, directors the Buyer and employees, it being understood and agreed the D&O Indemnified Persons agree that the indemnification provided for in secondary indemnitors are express third party beneficiaries of this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements8.6.5.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (IES Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent the Surviving Company shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be US$479,564 in the aggregate) (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.05(b), the Company may and, at ParentMerger Sub’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent Merger Sub or the Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent Merger Sub prior to the date hereof) and to the fullest extent permitted by the CICL CICA or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts by the Surviving Company under Section 6.05(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements, any person seeking indemnification pursuant to Section 6.05(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements shall use commercially reasonable efforts to notify the Surviving Company promptly. Unless (x) otherwise provided in any applicable agreement or document providing for indemnification to the contrary or (y) joint representation is inappropriate due to a conflict of interest between the person seeking indemnification and the Surviving Company (or its applicable Subsidiary) or any other person represented by the counsel that is proposed by the Surviving Company or such Subsidiary to conduct the defense of the person seeking indemnification, (i) the Surviving Company (or a Subsidiary nominated by it) shall have the right to participate in any Action and, at its option, assume the defense of such Action in respect of which indemnification is sought under the applicable agreement or document; (ii) the person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action; and (iii) in the event the Surviving Company (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Company nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL CICA or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third party beneficiary of the provisions of this Section 6.05. The obligations of Parent Merger Sub and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 2 contracts
Samples: Merger Agreement (Yan Rick), Merger Agreement (51job, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement certificate of incorporation and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed bylaws (or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association comparable organizational documents) of the Surviving Corporation and each Company Subsidiary shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and exculpation, indemnification of liability and advancement of expenses than are set forth in the memorandum certificate of incorporation and articles of association bylaws (or comparable organizational documents) of the Company and each Company Subsidiary as in effect on the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyCompany or any Company Subsidiary, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring at or prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Insured Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time); provided, however, that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under to the Company’s current policies; Insured Parties, and provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy or policies prior to the Effective Time on terms, conditions, retentions terms and limits of liability conditions no less advantageous to the Indemnified Insured Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, each of Parent and the Surviving Company shall comply (Corporation shall, and Parent shall cause the Surviving Company to comply) with all of the Company’s obligationsSubsidiaries to, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations and shall advance expenses as incurred to advance funds for expenses): (ithe fullest extent permitted by applicable Law to) the present and former officers and directors of the Company and the Company Subsidiaries, and any person who served or serves, at the request or for the benefit of the Company or any Company Subsidiary, as a director, officer, partner, member, manager, trustee, employee or other fiduciary of any employee benefit plan, enterprise or other person (all such persons, collectively, the “Indemnified Parties Parties”), against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a directorwith, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred prior to or at the Effective Time in connection with such Indemnified Person’s service as a director or officer of the Company or any Company Subsidiary or in such other capacity, including, to the fullest extent permitted by applicable Law, (including acts or omissions with respect to i) the approval of this Agreement Agreement, the Merger or the other Transactions or arising out of or pertaining to the Transactions and actions (ii) claims, actions, suits and proceedings to enforce this provision or any other rights to exculpation, indemnification or and advancement right of any Indemnified Party) prior to or at the Effective Timeexpenses, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; provided, further, that a person to whom any costs or expenses are advanced shall have provided the Surviving Corporation with (1) documentary evidence of incurrence by such person of such costs or expenses and (ii2) a written undertaking by such persons against person to repay any and all Damages arising out amounts advanced if it shall ultimately be determined that he or she is not entitled to indemnification under or pursuant to this Section 6.05(c) (which undertaking shall be accepted without regard to the ability of acts or omissions such person to repay such amounts). Notwithstanding anything in such persons’ official capacity the foregoing to the contrary, no indemnification shall be made under this Section 6.05(c) in respect of any Action as an officerto which a person seeking indemnification shall have been adjudged, director in a final, non-appealable decision, by a court, tribunal or other fiduciary in Governmental Authority of competent jurisdiction (A) to be liable to the Company or any Company Subsidiary, unless and to the extent that such court, tribunal or other Governmental Authority shall determine upon application that in view of its Subsidiaries if all the circumstances of the case such service person is fairly and reasonably entitled to indemnification, or (B) that such person’s actions, or omissions to act: (1) constitute a violation of Law, unless such person had reasonable cause to believe his or her conduct was at lawful or had no reasonable cause to believe his or her conduct was unlawful, or (2) were not taken in good faith and in a manner the request person reasonably believed to be in or for not opposed to the benefit best interests of the Company or any of its SubsidiariesCompany Subsidiary, as applicable.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts under Section 6.05(c), the person seeking indemnification shall promptly notify the Surviving Corporation, but the failure to provide such notice shall not affect such person’s rights under Section 6.05(c) except to the extent that the Surviving Corporation is materially prejudiced thereby. The Surviving Corporation (or a subsidiary nominated by it) shall have the right, but not the obligation, to participate in any such Action and, at its option, assume the defense of such Action with counsel selected by the Surviving Corporation and reasonably acceptable to the party seeking indemnification, at the expense of the Surviving Corporation (or such subsidiary). The person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action. In the event the Company Surviving Corporation (or a subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Corporation nor any of its subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Action, unless the Surviving Corporation (or such subsidiary) shall not reasonably pursue such defense. The Surviving Corporation (or such subsidiary) shall not settle or compromise any such Action with respect to any individual person seeking indemnification without the prior written consent of such person unless such settlement or compromise (i) includes an unconditional release of the person seeking indemnification with respect to any and all claims that were or could have been brought in such Action, (ii) contains no admission or finding of guilt or fault by the person seeking indemnification and (iii) imposes no liability or penalty upon the person seeking indemnification.
(e) If Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing resulting or Surviving Company 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 person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume all of the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which whom shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The After the Effective Time, the obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) The provisions of this Section 6.05 are in addition to any other rights an Indemnified Party may have under the certificate of incorporation and bylaws (or comparable organizational documents) of the Company and the Company Subsidiaries, or any agreement between an Indemnified Party and the Company or any Company Subsidiary, under the DGCL or other applicable Law, or otherwise. Nothing in this Agreement is intended to, nor shall it be construed to or shall to, release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries Company Subsidiary or their respective officers, current or former directors and employeesofficers, it being understood and agreed that the indemnification and advancement of expenses provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or policies.
(h) Parent and the Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other agreementsobligations provided in this Section 6.05 unless such Indemnified Party is finally judicially determined not to be entitled to indemnification under this Section 6.05.
Appears in 2 contracts
Samples: Merger Agreement (MEMSIC Inc), Merger Agreement (Idg-Accel China Growth Fund Ii L P)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and the Merger Sub agree that all rights to indemnification, advancement of expenses, and exculpation provisions 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 indemnification agreements by and among Company (each a “Company Indemnified Party”) as provided in the Company and its directors and certain executive officers Charter Documents of the Company, in each case as in effect on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.10 of the Company Disclosure Letter, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall not be amended, repealed or otherwise modified for remain in full force and effect in accordance with their terms. For a period of six two years from the Effective Time, (i) the Surviving Corporation shall, and the Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification, and advancement of expenses equivalent to the provisions of the Charter Documents of the Company as in effect immediately prior to the Effective Time with respect to acts or omissions by any Company Indemnified Party occurring prior to the Effective Time, (ii) maintain a policy of director and officer liability insurance with commercially reasonable coverage, however, in no event shall such coverage be less than any such current policy maintained by the Company for the period prior to the Effective Time,] and (iii) shall not amend, repeal, or otherwise modify any such policies or provisions in the Charter Documents in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the any Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable Indemnified Party; provided that all rights to the intended beneficiaries with indemnification in respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or claim made for indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and within such period shall continue in full force and effect in accordance with its termsuntil the disposition of such action or resolution of such claim.
(b) The Surviving Company shallobligations of the Parent, the Merger Sub, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with Corporation under this Agreement and Section 5.10 shall survive the consummation of the Transactions Merger and shallnot be terminated or modified in such a manner as to adversely affect any Company Indemnified Party to whom this Section 5.10 applies without the consent of such affected Company Indemnified Party (it being expressly agreed that the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Company Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to whom this Section 6.05(b) more than an amount per year equal to 300% 5.10 applies shall be third party beneficiaries of current annual premiums paid by this Sectioneach of whom may enforce the Company for such insurance, and if the cost provisions of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate5.10).
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or Parent, the Surviving Company Corporation, or any of their respective successors or assigns assigns:
(i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of in such consolidation or merger 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 the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume all of the obligations set forth in this Section 6.05.
(e) 5.10. The agreements and covenants contained in this Section 6.05 herein shall not be in addition deemed to be exclusive of any other rights an to which any Company Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents)is entitled, or any agreement between an Indemnified Party and the Company or any of its Subsidiarieswhether pursuant to Law, under the CICL or other applicable LawContract, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to to, or shall release, waive waive, or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors directors, and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 5.10 is not prior to to, or in substitution for for, any such claims under any such policies or other agreementspolicies.
Appears in 2 contracts
Samples: Merger Agreement (ALKALINE WATER Co INC), Merger Agreement
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year six-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company Corporation to comply) with all of the Company’s obligations, and each of the Surviving Company Corporation and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Third-Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, ; it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 2 contracts
Samples: Merger Agreement (Baring Asia Private Equity Fund v Co-Investment L.P.), Merger Agreement (Shi Yuzhu)
Directors’ and Officers’ Indemnification and Insurance. (a) The Holdco agrees that all rights to indemnification, advancement and of expenses or exculpation provisions (including all limitations on personal liability) existing as of the indemnification agreements by date of this Agreement in favour of each present and among the Company and former director, officer or employee of Warner Chilcott or any of its directors and certain executive officers as Subsidiaries provided for in effect their respective Organisational Documents or in any agreement to which Warner Chilcott or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the Merger consummation of the Scheme and shall not be amended, repealed or otherwise modified for continue in full force and effect in accordance with their terms. For a period of six (6) years from after the Effective Time Time, Holdco shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Warner Chilcott and its Subsidiaries or in any agreement to which Warner Chilcott or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the current Effective Time were directors, officers or former directors or officers employees of the Company Warner Chilcott or any of its Subsidiaries. The memorandum and articles Subsidiaries in respect of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed actions 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, omissions occurring at or prior to the Effective Time, were directors, officers, employees, fiduciaries Time (including actions or agents omissions occurring at or prior to the Effective Time arising out of the Companytransactions contemplated by this Agreement); provided, unless however, that in the event any claim, action, suit proceeding or investigation is pending, asserted or made either prior to the Effective Time or within such modification six year period, all rights to indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(a) in respect thereof shall be required by Lawcontinue until disposition thereof. From and after the Effective Time, any agreement Holdco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Warner Chilcott and its Subsidiaries to honour, in accordance with their respective terms, each of any Indemnified Party with the Company covenants contained in this Clause 7.3 without limit as to time.
(b) Holdco agrees that all rights to indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing as of the date of this Agreement in favour of each present and former director, officer or employee of Actavis or any of its Subsidiaries regarding exculpation provided for in their respective Organisational Documents or indemnification in any agreement to which Actavis or any of liability its Subsidiaries is a party in respect of actions or advancement omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of expenses shall be assumed the transactions contemplated by the Surviving Company, this Agreement) shall survive the Merger consummation of the Scheme and shall continue in full force and effect in accordance with its their terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for . For a period of six (6) years from after the Merger Effective Time Time, Holdco shall maintain in effect the current directors’ provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Actavis and officers’ liability insurance policies maintained by its Subsidiaries or in any agreement to which Actavis or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the Company with respect to matters occurring rights thereunder of any individuals who at any time prior to the Merger Effective TimeTime were directors, including acts officers or employees of Actavis or any of its Subsidiaries in respect of actions or omissions occurring in connection with this Agreement and at or prior to the consummation Merger Effective Time (including actions or omissions occurring at or prior to the Merger Effective Time arising out of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Timetransactions contemplated by this Agreement); provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, furtherhowever, that in no the event shall any claim, action, suit, proceeding or investigation is pending, asserted or made either prior to the Surviving Company be Merger Effective Time or within such six year period, all rights to indemnification, advancement of expenses or exculpation required to expend be continued pursuant to this Section 6.05(bClause 7.3(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company in respect thereof shall obtain a policy with the greatest coverage for a cost not exceeding such amountcontinue until disposition thereof. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from From and after the Effective Time, the Surviving Company Holdco shall comply (assume, be jointly and Parent severally liable for, and honour and guaranty, and shall cause the Surviving Company Actavis and its Subsidiaries to comply) honour, in accordance with all of the Company’s obligationstheir respective terms, and each of the Surviving Company covenants contained in this Clause 7.3 without limit as to time.
(c) At and Parent shall cause its Subsidiaries after the Effective Time, each of Holdco and Warner Chilcott shall, to comply with their respective obligations to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer or employee of Warner Chilcott or any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the request or for the benefit of Warner Chilcott or any of its Subsidiaries (including any obligations to advance funds for expenses): (ieach, together with his or her respective heirs and representatives, a “Warner Chilcott Indemnified Party” and, collectively, the “Warner Chilcott Indemnified Parties”) the Indemnified Parties against any and all costs or and expenses (including reasonable advancing attorneys’ fees and expensesexpenses in advance of the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Warner Chilcott Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigationinvestigation (whether arising before, at or after the Effective Time), whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating of or pertaining to any action or omission in connection with (A) the fact that an Indemnified Party is or was such person’s capacity as a director, officer or employee of the Company Warner Chilcott or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Timeas a director, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director member, trustee or fiduciary of another company, joint venture, trust or other fiduciary in the Company or any of its Subsidiaries enterprise if such service was at the request or for the benefit of the Company Warner Chilcott or any of its Subsidiaries, in each case occurring or alleged to have occurred at or before the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement).
(d) At and after the Merger Effective Time, each of Holdco and Actavis shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer or employee of Actavis or any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the request or for the benefit of Actavis or any of its Subsidiaries (each, together with his or her respective heirs and representatives, a “Actavis Indemnified Party” and, collectively, the “Actavis Indemnified Parties” and, collectively with the Warner Chilcott Indemnified Parties, the “Indemnified Parties”) against all costs and expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Actavis Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any actual or threatened claim, action, suit, proceeding or investigation (whether arising before, at or after the Merger Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in such person’s capacity as a director, officer or employee of Actavis or any of its Subsidiaries or as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the request or for the benefit of Actavis or any of its Subsidiaries, in each case occurring or alleged to have occurred at or before the Merger Effective Time (including actions or omissions occurring at or prior to the Merger Effective Time arising out of the transactions contemplated by this Agreement).
(e) For a period of six years from the Effective Time, Holdco shall cause to be maintained in effect (i) the coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the Completion Date maintained by Warner Chilcott and its Subsidiaries with respect to matters arising on or before the Effective Time (provided that Holdco may substitute therefor policies with a carrier with comparable credit ratings to the existing carrier of at least the same coverage and amounts containing terms and conditions that are no less favourable to the insured) or (ii) a “tail” policy (which Warner Chilcott may purchase at its option prior to the Effective Time, and, in such case, Holdco shall cause such policy to be in full force and effect, and shall cause all obligations thereunder to be honoured by Warner Chilcott) under Warner Chilcott’s existing directors’ and officers’ insurance policy that covers those persons who are currently covered by Warner Chilcott’s directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring at or prior to the Effective Time, is from a carrier with comparable credit ratings to Warner Chilcott’s existing directors’ and officers’ insurance policy carrier and contains terms and conditions that are no less favourable to the insured than those of Warner Chilcott’s directors’ and officers’ insurance policy in effect as of the date hereof; provided, however, that, after the Effective Time, Holdco shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by Warner Chilcott prior to the date hereof in respect of the coverages required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount.
(f) For a period of six years from the Merger Effective Time, Holdco shall cause to be maintained in effect (i) the coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the Completion Date maintained by Actavis and its Subsidiaries with respect to matters arising on or before the Merger Effective Time (provided that Holdco may substitute therefor policies with a carrier with comparable credit ratings to the existing carrier of at least the same coverage and amounts containing terms and conditions that are no less favourable to the insured) or (ii) a “tail” policy (which Actavis may purchase at its option prior to the Merger Effective Time, and, in such case, Holdco shall cause such policy to be in full force and effect, and shall cause all obligations thereunder to be honoured by Actavis) under Actavis’s existing directors’ and officers’ insurance policy that covers those persons who are currently covered by Actavis’s directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring at or prior to the Merger Effective Time, is from a carrier with comparable credit ratings to Actavis’s existing directors’ and officers’ insurance policy carrier and contains terms and conditions that are no less favourable to the insured than those of Actavis’s directors’ and officers’ insurance policy in effect as of the date hereof; provided, however, that, after the Merger Effective Time, Holdco shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by Actavis prior to the date hereof in respect of the coverages required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount.
(g) The rights of each Indemnified Party under this Clause 7.3 shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the Organisational Documents of Warner Chilcott or any of its Subsidiaries or the Organisational Documents of Actavis or any of its Subsidiaries, as applicable, any agreement, any insurance policy, the Act (or any other applicable Law) or otherwise. The provisions of this Clause 7.3 shall survive the consummation of the Acquisition and the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties shall be third party beneficiaries of this Clause 7.3 and shall be entitled to enforce the covenants contained in this Clause 7.3). Holdco shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Clause 7.3.
(h) In the event the Company or the Surviving Company Holdco or any of their its respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger merger, or (ii) transfers all or substantially all conveys more than 50% 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 or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall Holdco assume the obligations set forth in this Section 6.05Clause 7.3.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Transaction Agreement (Actavis, Inc.), Transaction Agreement (Warner Chilcott PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for For a period of six (6) years from after the Effective Time in any manner that would adversely affect Time, unless otherwise required by applicable Law, the rights thereunder certificate of the current incorporation and bylaws (or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association equivalent organizational documents) of the Surviving Company Corporation and its Subsidiaries shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and the indemnification of liability and advancement of expenses to directors and officers than are set forth in the memorandum and articles Certificate of association Incorporation or Bylaws (or equivalent organizational documents) of the Company (or the relevant Subsidiary) as in effect on the date hereof, and . Parent shall and shall cause the Surviving Corporation to indemnify and advance reasonable expenses to, each present and former director or officer of the Company and each Subsidiary (collectively, the “Indemnified Parties”), in and to the extent of their capacities as such provisions and not as stockholders of the Company or any Subsidiary, in respect of actions, omissions or events through the Effective Time to the fullest extent permitted by Law. Without limiting the generality of the preceding sentence, if any Indemnified Party becomes involved in any actual or threatened action, suit, claim, proceeding or investigation covered by this Section 6.03 after the Effective Time, Parent shall, or shall cause the Surviving Corporation to, to the fullest extent permitted by Law, promptly advance to such Indemnified Party his or her reasonable legal or other reasonable expenses (including the reasonable cost of any investigation and preparation incurred in connection therewith).
(b) The Surviving Corporation shall either (i) cause to be amended, repealed obtained a “tail” insurance policy with a claims period of at least six (6) years from the Effective Time with respect to directors’ and offices’ liability insurance in amount and scope at least as favorable as the Company’s policies existing as of the date of this Agreement for claims arising from facts or otherwise modified events that occurred prior to the Effective Time or (ii) maintain the officers’ and directors’ liability insurance policies maintained by the Company on the date of this Agreement (provided that the Surviving Corporation may substitute therefore policies of at least the same coverage containing terms and conditions that are not less favorable to the Indemnified Parties) for a period of six (6) years from after the Effective Time so long as the annual premium therefor is not in any manner that would affect adversely excess of 200% of the rights thereunder of individuals who, at or last annual premium paid prior to the Effective Timedate hereof; provided, were however, that if the existing officers’ and directors’ liability insurance policies expire, officers, employees, fiduciaries are terminated or agents of the Company, unless canceled during such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time year period or require an annual premium in excess of 200% of the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums premium paid by the Company for such insurance, and if the cost Company will obtain as much coverage as can be obtained for the remainder of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage period for a cost premium not exceeding in excess of 200% (on an annualized basis) of such amountcurrent annual premium. In addition, The Company represents to Parent that the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability current annual premium paid for such insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateis $70,000.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, If Parent or the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company Corporation or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or shall cease to continue to exist for any reason 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 or the Surviving CompanyCorporation and the transferee or transferees of such properties and assets, as the case may be, or at Parent’s option, Parentapplicable, shall assume all of the obligations set forth in this Section 6.056.03.
(ed) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 6.03 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, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (Cruzan International, Inc.), Merger Agreement (Absolut Spirits CO INC)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be US$376,768 in the aggregate) (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.05(b), the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) A person seeking indemnification in accordance with Section 6.05(c) or applicable agreement or document providing for such indemnification shall use commercially reasonable efforts to promptly notify the Surviving Company to prevent the Surviving Company or any of its Subsidiaries from being materially and adversely prejudiced by late notice. Unless (x) otherwise provided in any applicable agreement or document providing for indemnification to the contrary or (y) joint representation is inappropriate due to a conflict of interest between the person seeking indemnification and the Surviving Company (or its applicable Subsidiary) or any other person represented by the counsel that is proposed by the Surviving Company or such Subsidiary to conduct the defense of the person seeking indemnification, (i) the Surviving Company (or a Subsidiary nominated by it) shall have the right to participate in any Action and, at its option, assume the defense of such Action in respect of which indemnification is sought under the applicable agreement or document; (ii) the person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action; and (iii) in the event the Surviving Company (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Company nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 2 contracts
Samples: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationParent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect 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 Company’s or each of the Company’s Subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents) or in any agreement shall survive the Merger and shall not be amended, repealed or otherwise modified for continue in full force and effect. For a period of six (6) years from the Effective Time Time, Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) (i) fulfill and honor all obligations of the Company to the Indemnitees with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the fullest extent permitted by the Laws of the State of Delaware and required by: (x) the Restated Certificate of Incorporation, as amended, or Bylaws, as amended (or equivalent organizational or governing documents), of the Company or any of its Subsidiaries or affiliates as in effect on the date of this Agreement and (y) the indemnification agreement(s) of the Company or its Subsidiaries or other applicable Contract(s) as in effect on the date of this Agreement, and (ii) not amend, repeal or otherwise modify any such provisions referenced in subsections (i)(x) and (y) above in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyIndemnitees, unless such modification shall be is required by Law. From and after the Effective Time, any agreement Laws of any Indemnified Party with the Company or any State of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsDelaware.
(b) The Surviving Company shallWithout limiting the provisions of Section 6.7(a), and Parent shall cause during the Surviving Company to, maintain in effect for six (6) years from period commencing as of the Effective Time and ending on the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to sixth (6th) anniversary of the Effective Time, including acts or omissions occurring in connection with this Agreement Parent and the consummation Surviving Corporation will to the extent permitted by the Laws of the Transactions State of Delaware: (the parties covered thereby, the “Indemnified Parties”i) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including each Indemnitee against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, inquiries, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (“Damages”), arising out of, relating to x) any action or omission or alleged action or omission in connection with (A) the fact that an Indemnified Party is or was such Indemnitee’s capacity as a director, officer officer, employee, fiduciary or employee agent of the Company or any of its Subsidiaries or affiliates; or (By) the Distribution, the Recapitalization or Pre-Merger Special Distribution, as the case may be, the Merger, the Merger Agreement and any acts transactions contemplated hereby; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or omissions occurring or alleged to have occurred investigation the expenses (including acts reasonable attorneys’ fees) of any Indemnitee upon receipt of an undertaking by or omissions 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 6.7(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 the approval any claim, action, suit, proceeding or investigation of a covered person for which indemnification may be sought under this Agreement Section 6.7(b) unless such settlement, compromise, consent or the Transactions or termination includes an unconditional release of such covered person from all liability arising out of such claim, action, suit, proceeding or pertaining investigation, and does not include an admission of fault or wrongdoing by any Indemnitee or such Indemnitee otherwise consents in writing to the Transactions and actions such settlement, compromise, consent or termination.
(c) Prior to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, the Company shall 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 Effective Time with respect to any claim related to any period of time at or prior to the extent 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 or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof existing policies.
(true and complete copies of which shall have been delivered d) The Indemnitees to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification whom this Section 6.7 applies shall be subject third party beneficiaries of this Section 6.7. The provisions of this Section 6.7 are intended to be for the benefit of each Indemnitee and his or her successors, heirs or Representatives.
(e) The rights of each Indemnitee under this Section 6.7 shall be in addition to any limitation imposed from time to time rights such person may have under applicable Law; and (ii) such persons against any and all Damages arising out the certificate of acts incorporation or omissions in such persons’ official capacity as an officerbylaws of the Company, director or other fiduciary in the Company Surviving Corporation or any of its Subsidiaries if such service was at the request Subsidiaries, or for the benefit under any applicable Law or under any agreement of any Indemnitee with the Company or any of its Subsidiaries.
(df) Notwithstanding anything contained in Section 9.1 or Section 9.7 to the contrary, this Section 6.7 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 the Company that Parent or the Surviving Company Corporation or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parentapplicable, shall assume succeed to the obligations set forth in this Section 6.056.7.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 2 contracts
Samples: Merger Agreement (Thestreet, Inc.), Merger Agreement (theMaven, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the any Group Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and continue in full force and effect in accordance with their terms and 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under the Company’s current policies; , and provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be US$215,000 in the aggregate), and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions terms and limits of liability conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s its obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, including the approval of this Agreement, the Transactions or arising out of or pertaining to the Transactions, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts under Section 6.05(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Corporation promptly, but in all events no later than the earlier of (i) five (5) days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Corporation or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Corporation (or a Subsidiary nominated by it) shall have the right to participate in any such Action and, at its option, assume the defense of such Action. The person seeking indemnification shall have the right, but not the obligation, to effectively participate in the defense and/or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action. In the event the Surviving Corporation (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Corporation nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 2 contracts
Samples: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The All rights to indemnification, advancement of expenses and exculpation provisions existing on the date of the indemnification agreements by and among the Company and its directors and certain executive officers as Original Agreement in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period favor of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current present or former directors director or officers officer of the Company or any of its Subsidiaries. The memorandum and articles Subsidiaries (the “Indemnified Parties”) as provided in the Company Organizational Documents, or any organizational documents of association any of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation Company’s Subsidiaries, or in agreements between an Indemnified Party and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as or one of its Subsidiaries, or otherwise in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, Original Agreement shall survive the Merger and shall continue in full force and effect after the Effective Time and the provisions in accordance with its termsthe Company Organizational Documents, any organizational documents of any of the Company’s Subsidiaries or any such agreement providing for such indemnification advancement of expenses and exculpation shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individual.
(b) The Surviving Company Parent shall, and Parent shall cause the Surviving Corporation to, indemnify all Indemnified Parties to the fullest extent permitted by applicable Laws with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Legal Action, whenever asserted, based on or arising out of, in whole or in part, (i) the fact that an Indemnified Party was a director or officer of the Company or any of its Subsidiaries at or prior to the Effective Time or (ii) acts and omissions arising out of or relating to their services as directors or officers of the Company or its Subsidiaries occurring at or prior to the Effective Time. If any Indemnified Party is or becomes involved in any such Legal Action, Parent shall pay as incurred such Indemnified Party’s legal fees, costs and expenses incurred in connection with such Legal Action, subject to Parent’s receipt of an undertaking by or on behalf of such Indemnified Party to repay such legal fees, costs and expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified.
(c) Parent shall, or shall cause the Surviving Corporation to, maintain in effect for six (6) at least seven years from after the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If , or policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the individuals covered by such policies than the terms of such policies in effect on the date of the Original Agreement (“tail” prepaid policies have been obtained D&O Replacement Policy”), 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 prior to the date of the Original Agreement (the dollar amount of such percentage being the “Maximum Premium”). If Parent is unable to obtain, or unable to so cause to be obtained, the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, it shall instead obtain, or cause the Surviving Corporation to obtain, as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Any insurance obtained by Parent or the Surviving Corporation pursuant to this Section 5.10(c) shall not result in gaps in coverage. The Company represents and agrees that the Maximum Premium as of the date of the Original Agreement was $774,000. Prior to the Effective Time, the Surviving Company shallmay, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all may, obtain one or more seven year prepaid “tail policy” or policies in lieu of the Company’s obligations, and each current policies of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ liability insurance claims under any policy or other agreement that is or has been in existence with respect maintained by the Company applicable from and after the Effective Time to the Company or any acts and omissions of its Subsidiaries or their respective officers, directors and employeesofficers of the Company up to and including the Effective Time and providing the same coverage and amounts and terms and conditions as such current policies (collectively, it being understood the “D&O Tail Policy”). Parent shall not take any action to terminate the D&O Replacement Policy or the D&O Tail Policy during such seven-year period, and agreed that any insurance obtained by Parent or the indemnification provided for in Surviving Corporation pursuant to this Section 6.05 5.10(c) shall not result in gaps in coverage. If such D&O Tail Policy is obtained, Parent shall not prior be obligated to or in substitution for any such claims under any such policies or other agreementsobtain the D&O Replacement Policy.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CSR PLC), Agreement and Plan of Merger (Zoran Corp \De\)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Surviving Corporation and exculpation provisions its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) honor and fulfill in all respects the obligations of the indemnification agreements by and among the Company and its Subsidiaries to all current and former directors or officers of the Company, any of its Subsidiaries or any of their respective predecessors and certain executive officers any Person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (the “Indemnified Persons”) under (i) any indemnification, expense advancement and exculpation provision set forth in any certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries as in effect at on the Effective Time shall survive date of this Agreement and (ii) all indemnification agreements between the Merger Company or any of its Subsidiaries and shall not be amended, repealed or otherwise modified for any such Indemnified Persons. For a period of six (6) years from after the Effective Time Time, none of Parent, the Surviving Corporation or any of its Subsidiaries shall amend, repeal or otherwise modify the certificate of incorporation or bylaws (or other similar organizational documents) of the Surviving Corporation or its Subsidiaries in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries Indemnified Parties with respect to indemnification, exculpation and indemnification limitation of liability liabilities of the Indemnified Parties and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsexpenses.
(b) The Surviving Company In addition to the provisions of Section 7.1(a), during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent permitted by applicable Law, Parent shall, and Parent shall cause the Surviving Company Corporation and its Subsidiaries to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the each Indemnified Parties Person from and against any costs, fees and all costs or expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, actionproceeding, suit, proceeding investigation or investigationinquiry, whether civil, criminal, administrative or investigative investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (“Damages”)i) any action or omission or alleged action or omission in such Indemnified Person’s capacity as a director or officer of the Company or any of its Subsidiaries occurring at or prior to the Effective Time, arising out of, relating to or in connection with (Aii) the fact that an Indemnified Party is Offer, the Merger, this Agreement or was a directorany of the transactions contemplated by this Agreement, officer in each case to the same extent as provided in any certificate of incorporation or employee bylaws or comparable organizational documents of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in agreement between the Company or any of its Subsidiaries if and any such service was Indemnified Person; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for indemnification under this Section 7.1(b), then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent permitted by applicable Law, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such claim, proceeding, investigation or inquiry; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for advancement under this Section 7.1(b), then the benefit right to advancement asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved; and provided, further, that such Indemnified Person provides an undertaking to repay such advances to Parent or the Surviving Corporation, as applicable, if it is ultimately determined by a court of competent jurisdiction (which determination is not subject to any appeal) that such Indemnified Person is not entitled to indemnification under applicable Law. In the event of any such claim, proceeding, investigation or inquiry, (i) Parent shall have the right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, Parent will be deemed to have waived any right to object to the Indemnified Person’s entitlement to indemnification hereunder with respect thereto), (ii) each Indemnified Person shall be entitled to retain his or her own counsel, whether or not Parent shall elect to control the defense of any such claim, proceeding, investigation or inquiry, (iii) Parent shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Person, promptly after statements therefor are received, whether or not Parent shall elect to control the defense of any such claim, proceeding, investigation or inquiry, (iv) Parent shall provide each Indemnified Person and his or her own counsel with reasonable access to the books and records of the Company after the Effective Time to the extent such books and records are relevant to the defense of any such claim, proceeding, investigation or inquiry and (v) no Indemnified Person shall be liable for any settlement effected without his or her prior express written consent. Notwithstanding anything to the contrary set forth in this Section 7.1(b) or elsewhere in this Agreement, neither Parent nor any of its SubsidiariesAffiliates (including the Surviving Corporation) shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such claim, proceeding, investigation or inquiry. Each Indemnified Person is, and the Indemnified Persons collectively are, intended third party beneficiaries of this Section 7.1(b), and each such Person shall have a right to enforce the rights hereunder as if such person was a party to this Agreement.
(c) Prior to the Effective Time, the Company may, in consultation with Parent, obtain “tail” prepaid insurance policies with a claims period of at least six years from and after the Effective Time from an insurance carrier with the same or better rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary insurance (collectively, “D&O Insurance”), for the Indemnified Persons, with terms, conditions, retentions and levels of coverage at least as favorable, in the aggregate, as the Company’s existing D&O Insurance with respect to matters existing or occurring prior to the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby). If such “tail” prepaid insurance policies have been obtained, Parent shall, and shall cause the Surviving Corporation after the Effective Time to, maintain such policies in full force and effect, for their full term, and to continue to honor its respective obligations thereunder. If the Company fails to obtain such “tail” prepaid insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no expense to the beneficiaries, for a period of at least six years from and after the Effective Time for the Indemnified Persons, the D&O Insurance (provided that Parent (or any successor) may substitute therefor policies of at least the same terms, conditions, retentions and levels of coverage and amounts which are, in the aggregate, as favorable to the Indemnified Persons as provided in the existing policies as of the date of this Agreement, from an insurance carrier with the same or better rating as the Company’s current insurance carrier); provided, however, that in no event will Parent or the Surviving Corporation be required, and the Company shall not be permitted, to expend for such policies pursuant to this Section 7.1 an annualized premium amount in excess of 150% of the annual premiums currently paid by the Company for such insurance and if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall, and the Company may, obtain a substantially similar policy (from an insurance carrier with the same or better rating as the Company’s current insurance carrier) with the greatest coverage available for a cost not exceeding such amount. Each Indemnified Person is, and the Indemnified Persons collectively are, intended third party beneficiaries of this Section 7.1(c), and each such Person shall have a right to enforce the rights hereunder as if such person was a party to this Agreement.
(d) In the event the Company If Parent or the Surviving Company Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger 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 the Company or Surviving Corporation shall assume all of the obligations of Parent and the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the Corporation set forth in this Section 7.1.
(e) The obligations set forth in this Section 6.05.
7.1 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person (eor any other person who is a beneficiary under the “tail” policy referred to in Section 7.1(c) The agreements or the D&O Insurance (and covenants contained their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other person who is a beneficiary under the “tail” policy referred to in Section 7.1(c) or the D&O Insurance (and their heirs and representatives). Each of the Indemnified Persons or other persons who are beneficiaries under the “tail” policy referred to in Section 7.1(c) or the D&O Insurance (and their heirs and representatives) are intended to be third party beneficiaries of this Section 6.05 7.1, with full rights of enforcement as if a party thereto. The rights of the Indemnified Persons (and other persons who are beneficiaries under the “tail” policy referred to in Section 7.1(c) or the D&O Insurance (and their heirs and representatives)) under this Section 7.1 shall be in addition to to, and not in substitution for, any other rights an Indemnified Party that such persons may have under the memorandum and articles certificates of association of the Company incorporation, bylaws or any of its Subsidiaries (or other equivalent constitutional documents)organizational documents of, or any agreement between an Indemnified Party and all indemnification agreements of or entered into by, the Company or any of its Subsidiaries, under the CICL or other applicable Law, Law (whether at law or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyequity).
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or for any of their respective officersdirectors, directors and officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.05 7.1 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Agreement and Plan of Merger (McCormick & Schmicks Seafood Restaurants Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year six-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (comply, and Parent shall cause the Surviving Company Corporation to comply) , with all of the Company’s obligations, and each of the Surviving Company Corporation and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in of the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding which may result in the payment or advancement of any amounts under Section 6.05(c), the organizational and governing documents of the Company or any of its Subsidiaries, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Corporation promptly, but in all events no later than the earlier of (i) five days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Corporation or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Corporation (or a Subsidiary nominated by it) shall have the right to participate in any such Proceeding and, at its option, assume the defense of such Proceeding. The person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Proceeding, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Proceeding. In the event the Surviving Corporation (or a Subsidiary nominated by it) assumes the defense of any Proceeding pursuant to this Section 6.05(d), neither the Surviving Corporation nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Proceeding.
(e) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Third-Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, ; it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the earlier of the Acceptance Date or the Effective Time, Parent shall cause the certificate of incorporation and bylaws of the Company and the Surviving Corporation to contain provisions with respect to indemnification, advancement of expenses and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are those set forth in the memorandum certificate of incorporation and articles of association bylaws of the Company as in effect on of the date hereof, and Parent which provisions shall cause such provisions not be amendedbe, repealed or otherwise modified for a period of six (6) years from the Effective Time (or until such later date as any claims then still pending shall have been resolved) amended, repealed or otherwise modified in any manner that would adversely affect adversely the rights thereunder of individuals who, who at or prior to the Effective TimeTime were directors or officers of the Company or any of its Subsidiaries. Until the six (6) year anniversary of the Effective Time (or until such later date as any claims then still pending shall have been resolved), were Parent shall, and shall cause the Company and the Surviving Corporation to, honor and fulfill in all respects the obligations of (i) the Company and the Surviving Corporation under their respective certificates of incorporation and bylaws and (ii) the Company pursuant to indemnification agreements with the Company’s directors, officers, employees, fiduciaries employees or agents existing at or prior to the Effective Time to the fullest extent permitted by applicable Law.
(b) The Company shall, to the fullest extent permitted under applicable Law, indemnify, defend and hold harmless, and, from and after the earlier of the Company, unless such modification shall be required by Law. From and after Acceptance Date or the Effective Time, any agreement the Company and the Surviving Corporation shall, and Parent shall cause the Company or the Surviving Corporation (as applicable) to, indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, each present and former director or officer of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered therebycollectively, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual Action, investigation or threatened claim, action, suit, proceeding or investigationinquiry, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating of or pertaining to or in connection with (Ax) the fact that an the Indemnified Party is or was an officer, director, employee, agent or other fiduciary of the Company or any Subsidiary of the Company or (y) any act or omission by an Indemnified Party in the Indemnified Party’s capacity as a director, officer officer, employee or employee agent of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or taken at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies request of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was (including in connection with serving at the request or for the benefit of the Company or any of its SubsidiariesSubsidiaries as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)) or (z) this Agreement or the transactions contemplated by this Agreement, whether in any case asserted or arising before or after the Closing Date. Without limiting the generality of the foregoing, if any Indemnified Party becomes involved in any actual or threatened Action, investigation or inquiry with respect to which such Indemnified Party is seeking indemnification pursuant to this Section 7.5, the Company or the Surviving Corporation (as applicable) shall, and Parent shall cause the Company or the Surviving Corporation (as applicable) to, to the fullest extent permitted by Law, promptly (and in any event no later than twenty (20) days following any request therefor) advance to such Indemnified Party his or her reasonable legal expenses (including the reasonable cost of any investigation and preparation incurred in connection therewith); provided that any person to whom expenses are advanced provides an undertaking, to the extent then required by the DGCL, to repay such advances if it is finally judicially determined that such person is not entitled to indemnification.
(c) Parent shall be entitled (but shall not be obligated) to control the defense of any such Action, investigation or inquiry with counsel of its own choosing reasonably acceptable to the Indemnified Party. Parent, the Company and the Surviving Corporation shall not be liable for any settlement effected without Parent’s written consent (not to be unreasonably withheld, conditioned or delayed). Parent, the Company and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party is seeking indemnification hereunder. The Indemnified Party shall cooperate with Parent, the Company and the Surviving Corporation in the defense of any matter for which such Indemnified Party is seeking indemnification hereunder. Neither Parent nor the Surviving Corporation shall settle any such Action, investigation or inquiry without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (i) includes an unconditional release of the Indemnified Party and (ii) includes only the payment of money.
(d) Parent shall provide and maintain in effect, or shall cause the Surviving Corporation to provide and maintain in effect, for an aggregate period of not less than six (6) years from the Effective Time, for the benefit of the current and former directors and officers of the Company and its Subsidiaries an insurance and indemnification policy that provides coverage for acts or omissions occurring at or prior to the Effective Time (including, without limitation, for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) (the “D&O Insurance”) that is at least as favorable (with respect to coverage, amounts, limits, deductibles and conditions) as the Company’s existing policy; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 250% of the annual premium currently paid by the Company for such coverage (the “Company’s Current Premium”). If such premiums for such insurance would at any time exceed 250% of the Company’s Current Premium, then Parent shall maintain the maximum amount of coverage under a policy having the same deductible as is available for such 250% of the Company’s Current Premium. The Company represents and warrants to Parent that the Company’s Current Premium is as set forth on Section 7.5(d) or the Company Disclosure Schedule. Notwithstanding the foregoing, Parent shall use its reasonable best efforts to cause coverage to be extended under the Company’s D&O Insurance by obtaining a six-year “tail” policy, provided that the cost of such tail coverage does not exceed the amount as set forth on Section 7.5(d) of the Company Disclosure Schedule. If Parent is unable to obtain such tail policy, Parent shall provide the Company with notice thereof at least five business days prior to the earlier of the Acceptance Date and the Closing. If the Company receives such notice from Parent, the Company may purchase such tail policy, provided that the cost of such tail coverage does not exceed the amount as set forth on Section 7.5(d) of the Company Disclosure Schedule. Such tail policy, whether purchased by Parent or the Company, shall satisfy Parent’s and the Surviving Corporation’s obligations under this Section 7.5(d). 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 Subsidiaries or any of their officers or directors, it being understood and agreed that the indemnification provided for in this Section 7.5 is not in substitution for any such claims under such policies.
(e) This Section 7.5 shall survive the consummation of the Merger at the Effective Time, is intended to benefit and provide third party rights to the Indemnified Parties, shall be binding on Parent and the Surviving Corporation and their successors and assigns and shall be enforceable by the Indemnified Parties and their respective heirs and representatives. In the event the Company Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall expressly assume and succeed to the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party7.5.
(f) Nothing in If any Indemnified Party makes any claim for indemnification or advancement of expenses under 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 or other agreement Section 7.5 that is or has been in existence with respect to denied by Parent and/or the Company or any the Surviving Corporation, and a court of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed competent jurisdiction determines that the Indemnified Party is entitled to such indemnification provided for or advancement of expenses, then Parent, the Company or the Surviving Corporation shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementsconnection with pursuing its claims.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among between the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b6.04(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy to the extent reasonably available with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.04(b), the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b6.04(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.056.04, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL CICA or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under the CICA or any other applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts under Section 6.04(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Company promptly, but in all events no later than the earlier of (i) five (5) days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Company or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Company (or a Subsidiary nominated by it) shall have the right to participate in any such Action and, at its option, assume the defense of such Action. The person seeking indemnification shall have the right to effectively participate in the defense or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action. In the event the Surviving Company (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.04(d), neither the Surviving Company nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees or disbursements of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.056.04.
(ef) The agreements and covenants contained in this Section 6.05 6.04 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL CICA or other applicable Law, or otherwise. The provisions of this Section 6.05 6.04 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.056.04. The obligations of Parent and the Surviving Company under this Section 6.05 6.04 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the prior written consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.04 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (TDCX Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as Parent shall cause to be maintained in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six not less than one year and not more than three years from the Effective Time in any manner that would adversely affect a directors' and officers' liability insurance policy, with policy limits of not less than one million dollars ($1,000,000) and not more than three million dollars ($3,000,000), covering the rights thereunder of the current or former directors or officers and officer of the Company or any of its Subsidiaries(the "D&O Insurance Policy"). The memorandum and articles of association D&O Insurance Policy will be underwritten by a reputable insurance company. The provisions of the Surviving Company immediately preceding sentence shall contain provisions no less favorable be deemed to have been satisfied if, with the prior written consent of the Company, a prepaid policy has been obtained prior to the intended beneficiaries Effective Time for purposes of this Section 7.10(a), which policy provides the Company's directors and officers with coverage in the amount of not less than one million dollars ($1,000,000) and not more than three million dollars ($3,000,000) for an aggregate period of three years with respect to exculpation and indemnification of liability and advancement of expenses than are set forth claims arising from facts or events that occurred on or before the Effective Time, including, without limitation, in the memorandum and articles of association respect of the Company as in effect on the date hereof, and Parent shall cause transactions contemplated by this Agreement. If such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or policy has been obtained prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Parent shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies policy in full force and effect, and continue to honor the respective obligations thereunder, and all other . The obligations of Parent or Surviving Company under this Section 6.05(b7.10(a) shall terminatenot be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.10(a) applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 7.10(a) applies shall be third party beneficiaries of this Section 7.10(a)).
(cb) Subject to the terms and conditions of this Section 6.05, from From and after the Effective Time, the Surviving Company shall comply (Corporation will, and Parent shall will cause the Surviving Company to comply) with all of the Company’s obligationsCorporation to, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless each present and former director and officer of the Company or of any of its Subsidiaries, determined as of the Effective Time (including any obligations to advance funds for expenses): (i) the "Indemnified Parties Parties"), against any and all costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, claims, damages, damages or liabilities and amounts paid in settlement incurred in connection with any actual threatened, pending or threatened completed claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, of or pertaining to matters relating to their duties or actions in their capacity as such (or in connection with such capacity in another corporation, partnership, joint venture, trust or other enterprise at the request of the Company) and existing or occurring at or prior to the Effective Time (Aincluding those matters relating to the transactions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted to be so indemnified by the Surviving Corporation or such Subsidiary, as the case may be, under applicable law. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all rights of the Indemnified Parties to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the respective Articles of Incorporation or Bylaws (or comparable organizational documents) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered filed as exhibits to the Company's Annual Report on Form 10-K for the year ended October 26, 2003, in the case of the Company, and otherwise have been made available to Parent prior to the date hereof) as now in effect, and to the fullest extent permitted by the CICL any indemnification agreements or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out arrangements of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at provided to Parent prior to the request date hereof shall survive the Merger and shall continue in full force and effect in accordance with their terms, and Parent shall cause the Surviving Corporation to comply with its obligations thereunder. Such rights shall not be amended, or for otherwise modified in any manner that would adversely affect the benefit rights of the Company Indemnified Parties, unless such modification is required by law. The right to indemnification conferred by this Section 7.10 shall include the right to be advanced and paid by the Surviving Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its Subsidiariesfinal disposition, provided that such Indemnified Party provides an undertaking reasonably satisfactory in form and substance to the Surviving Corporation to repay such advanced expenses to the extent required by law or the terms of the applicable indemnification provision.
(c) From and after the Effective Time until the second anniversary thereof, Parent shall cause: (i) the Articles of Incorporation and Bylaws of the Surviving Corporation to contain provisions no less favorable to the Indemnified Parties with respect to indemnification and to limitation of certain liabilities of directors and officers than are set forth as of the date of this Agreement in the Company Charter and Bylaws of the Company; and (ii) the Certificate of Incorporation and Bylaws (or similar organizational documents) of each Subsidiary of the Surviving Corporation to contain the current provisions regarding indemnification of directors and officers which provisions in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnified Parties.
(d) In the event the Company that Parent or the Surviving Company Corporation or any of their the respective successors or assigns of each: (i) consolidates with or merges into any other person and shall is not be the continuing or Surviving Company 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, Parent and the Surviving Corporation shall ensure that proper provision shall be made so that the such successors and assigns of the Company Parent or the Surviving CompanyCorporation or the respective successors or assigns of each, as the case use may be, or at Parent’s option, Parent, shall assume all of the obligations thereof set forth in this Section 6.057.10.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ ' and officers’ ' insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and or employees, it being understood and agreed that the indemnification provided for in this Section 6.05 7.10 is not prior to or in substitution for any such claims under such policies.
(f) The provisions of this Section 7.10 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives; and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such policies person may have by contract or other agreementsotherwise. The obligations of Parent and the Surviving Corporation under this Section 7.10 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.10 applies without the consent of the affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 7.10 applies shall be third party beneficiaries of this Section 7.10). For the avoidance of doubt, any failure by the Surviving Corporation to pay any amounts under this Section 7.10 for any reason whatsoever (including that such entity has ceased to exist) shall entitle the Indemnified Parties to fulfillment by Parent of such obligations of the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Owosso Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFrom and after the Effective Time, advancement the Surviving Company and exculpation provisions 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 indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of Company Subsidiaries under all indemnification agreements between the Company or any Company Subsidiary and any of its Subsidiariestheir respective present or former directors and officers (collectively, the “Indemnified Parties”). The memorandum In addition, the certificate of incorporation and articles of association by-laws (or similar organizational documents) of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of Company Charter or the Company as in effect By-laws on the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and Company or any Company Subsidiary.
(b) For a period of six (6) years after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under applicable Law, indemnify and hold harmless each Indemnified Party against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or relating to any action or omission in their capacity as an officer, director, employee, fiduciary or agent of the Company or one of the Company Subsidiaries, whether occurring on or before the Effective Time. To the fullest extent permitted by Law, the Surviving Company shall, and Parent shall cause the Surviving Company to, pay all expenses of each Indemnified Party in advance of the final disposition of any such Action, subject to receipt of an undertaking (in form and substance reasonably acceptable to the Surviving Company) 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 Action, (i) the Surviving Company shall, and Parent shall cause the Surviving Company to, pay the reasonable fees and expenses of one (1) counsel selected by the Indemnified Parties, promptly after statements therefor are 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 or such Indemnified Party otherwise consents thereto in writing, and (iii) Parent and the Surviving Company shall cooperate in the defense of any such matter; provided, 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 7.04(b) shall be in addition to any rights such person may have under the certificate of incorporation or by-laws (or similar organizational documents) of the Company and the Surviving Company or any of their Subsidiaries, or under any Law or under any agreement of any Indemnified Party with the Company or any Company Subsidiary.
(c) Prior to the Effective Time, the Company may obtain “tail” insurance policies with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred on or prior to the Effective Time on terms with respect to coverage, deductibles and amounts no less favorable than those of such policy in effect on the date hereof for the six (6) year period following the Effective Time at a price not to exceed 300% of the amount per annum the Company paid for such insurance in its last full fiscal year prior to the date of this Agreement. If the Company does not obtain “tail” insurance prior to the Effective Time, the Surviving Company shall either (i) cause to be obtained at the Effective Time “tail” insurance policies with a claims period of at least six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in amount and scope at least as favorable as the Company’s existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six (6) years from the Effective Time Time, if available, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective TimeCompany; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those provided under with respect to matters occurring prior to the Company’s current policiesEffective Time; provided, furtherhowever, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b7.04(c) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance; provided further that in the event of an expiration, and if the cost termination or cancellation of such insurance policy exceeds such amountcurrent policies, then Parent or the Surviving Company shall be required to obtain a policy with the greatest as much coverage as is possible under substantially similar policies for a cost amounts not exceeding to exceed such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies maximum annual amount in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesaggregate annual premiums.
(d) In the event the Company Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other person and shall not be the continuing or Surviving Company surviving 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, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume succeed to the obligations set forth in this Section 6.057.04.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 7.04 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties Party, and their his or her heirs and legal representatives, each of which whom shall be a Third Party third party beneficiary under this Agreement.
(f) Parent shall cause the Surviving Company to perform all of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party7.04.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Aegion Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationParent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, advancement and exculpation provisions whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of the indemnification agreements by current or former directors, officers and among employees, if any (“D&O Indemnified Parties”), as the case may be, of the Company and or its directors and certain executive officers Subsidiaries as provided in their respective organizational documents as in effect at on the Effective Time date of this Agreement or in any Contract shall survive the Merger and shall not continue in full force and effect. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent that the Company or its Subsidiaries would be amendedpermitted by applicable Law and to the fullest extent required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement. Parent shall cause the charter, repealed bylaws or otherwise modified other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the date hereof, which provisions thereafter shall not, for a period of six years from the Effective Time Time, be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any D&O Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsParties.
(b) The Surviving Without limiting the provisions of Section 6.6(a), to the fullest extent that the Company shallwould be permitted by applicable Law to do so, and Parent shall or shall cause the Surviving Company Corporation to, maintain in effect for six : (6i) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including each D&O Indemnified Party against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising to the extent such claim, action, suit, proceeding or investigation arises out of, relating to of or in connection with pertains to: (A) the fact that an any alleged action or omission in such D&O Indemnified Party is or was Party’s capacity as a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions transactions contemplated hereby and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon receipt of a written affirmation by the D&O Indemnified Party of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification applicable to him or her and a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined that the standard of conduct for indemnification was not met. Any determination required to be made with respect to whether the conduct of any D&O Indemnified Party complies or complied with any applicable standard shall be made by independent legal counsel selected by the D&O Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, and the fees of such counsel shall be paid by the Surviving Corporation. Notwithstanding anything to the contrary contained in this Section 6.6(b) or elsewhere in this Agreement, Parent shall not (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, unless such settlement, compromise, consent or termination includes an unconditional release of all of the D&O Indemnified Parties covered by the claim, action, suit, proceeding or investigation from all liability arising out of such claim, action, suit, proceeding or pertaining investigation.
(c) Unless the Company shall have purchased a “tail” policy prior to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified PartyEffective Time as provided below, for at least six (6) prior to or at years after the Effective Time, (i) Parent shall cause the Surviving Corporation and its other Subsidiaries to maintain in full force and effect the extent coverage provided under by the Company’s or such Subsidiariesexisting directors’ respective organizational and governing documents or agreements officers’ liability insurance and fiduciary insurance in effect on as of the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted maintained by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries, as applicable (the “Existing D&O Insurance Policies”), or provide substitute policies for the Company and its current and former directors and officers who are currently covered by such Existing D&O Insurance Policies, in either case, on terms and conditions no less advantageous to the D&O Indemnified Parties, or any other Person entitled to the benefit of this Section 6.6, as applicable, than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided that Parent or the Surviving Corporation, as applicable, shall not be required to pay an annual premium for such insurance in excess of two hundred and fifty percent (250%) of the aggregate annual premiums currently paid by the Company or any of its Subsidiaries, as applicable, on an annualized basis, but in such case shall purchase as much of such coverage as possible for such amount) and (ii) Parent shall not, and shall not permit the Surviving Corporation or its other Subsidiaries to, take any action that would prejudice the rights of, or otherwise impede recovery by, the beneficiaries of any such insurance, whether in respect of claims arising before or after the Effective Time. In lieu of such insurance, prior to the Effective Time, the Company may purchase a six (6) year “tail” prepaid policy on such terms and conditions (provided that the premium for such insurance shall not exceed two hundred and fifty percent (250%) of the aggregate annual premiums currently paid by the Company or any of its Subsidiaries, as applicable, on an annualized basis), in which event Parent shall cease to have any obligations under the first sentence of this Section 6.6(c).
(d) In the event the Company or that Parent, the Surviving Company Corporation, any of the Company’s Subsidiaries or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving company or entity 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, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of the Company or Parent, the Surviving Company, as the case may be, Corporation or at Parent’s option, Parent, shall assume any such Subsidiary assumes the obligations set forth in this Section 6.056.6.
(e) The agreements and covenants contained in D&O Indemnified Parties to whom this Section 6.05 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 D&O Indemnified Party and his or her successors, heirs or representatives. The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other rights under this Section 6.6. The rights of each D&O Indemnified Party hereunder shall be in addition to to, and not in limitation of, any other applicable rights an such D&O Indemnified Party may have under the memorandum and articles of association respective organizational documents of the Company or any of its Subsidiaries (or equivalent constitutional documents)the Surviving Corporation, or any agreement between an Indemnified Party and other indemnification arrangement, the Company or any of its Subsidiaries, under the CICL or other applicable Law, DGCL or otherwise. The provisions Notwithstanding any other provision of this Agreement, this Section 6.05 6.6 shall survive the consummation of the Merger indefinitely (or any earlier period actually specified in this Section 6.6) and are intended to shall be for binding, jointly and severally, on all successors and assigns of Parent and the benefit ofSurviving Corporation, and shall be enforceable by, each of by the D&O Indemnified Parties and their successors, heirs and legal or representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationParent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, advancement and exculpation provisions whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of the indemnification agreements by current or former directors, officers and among employees, if any (“D&O Indemnified Parties”), as the case may be, of the Company and or its directors and certain executive officers Subsidiaries as provided in their respective organizational documents as in effect at on the Effective Time date of this Agreement or in any Contract shall survive the Merger and shall not be amended, repealed or otherwise modified continue in full force and effect for a period of six years from the Effective Time. For a period of six years from the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement and as would be permitted by applicable Law; provided, however, that all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim. Parent shall cause the articles 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 D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the date hereof, which provisions thereafter shall not, for a period of six years from the Effective Time, be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of the current D&O Indemnified Parties.
(b) Prior to the Effective Time, the Company shall purchase a six (6) year prepaid “tail” policy on terms and conditions no less advantageous to the D&O Indemnified Parties, or former directors or officers any other Person entitled to the benefit of this Section 6.6, as applicable, than the existing directors’ and officers’ liability insurance and fiduciary insurance maintained by the Company or any of its Subsidiaries. The memorandum and articles , as applicable, as of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided, that the premium for such insurance for the entire six (6) year term shall cause not exceed three hundred percent (300%) of the aggregate annual premiums currently paid by the Company or any of its Subsidiaries, as applicable, on an annualized basis). Notwithstanding anything in this Agreement to the contrary, if such provisions six (6) year prepaid “tail” policy is not available for purchase by the Company (or cannot be amendedpurchased in accordance with the terms of this Agreement), repealed or otherwise modified the Surviving Corporation shall continue the current directors’ and officers’ liability insurance and fiduciary insurance on a yearly basis for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that Parent or the Surviving Company may substitute therefor policies of at least the same coverage containing termsCorporation, conditionsas applicable, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company not be required to expend pursuant to this Section 6.05(bpay an annual premium for such insurance in excess of one hundred fifty percent (150%) more than an amount per year equal to 300% of current the aggregate annual premiums currently paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries, as applicable, for such coverage, but in such case shall purchase as much of such coverage as possible for such amount).
(dc) In the event the Company or that Parent, the Surviving Company Corporation, any of the Company’s Subsidiaries or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving company or entity 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, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of the Company or Parent, the Surviving Company, as the case may be, Corporation or at Parent’s option, Parent, shall assume any such Subsidiary assumes the obligations set forth in this Section 6.056.6.
(ed) The agreements and covenants contained in D&O Indemnified Parties to whom this Section 6.05 6.6 applies shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles third-party beneficiaries of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwisethis Section 6.6. The provisions of this Section 6.05 6.6 are intended to be for the benefit of each D&O Indemnified Party and his or her successors, heirs or representatives. The Surviving Corporation shall pay all reasonable and documented expenses, including reasonable attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other rights under this Section 6.6. Notwithstanding any other provision of this Agreement, this Section 6.6 shall survive the consummation of the Merger indefinitely (or any earlier period actually specified in this Section 6.6) and are intended to shall be for binding, jointly and severally, on all successors and assigns of Parent and the benefit ofSurviving Corporation, and shall be enforceable by, each of by the D&O Indemnified Parties and their successors, heirs and legal or representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Compuware Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFor a period of six years from and after the Effective Time, advancement the Surviving Corporation shall indemnify and exculpation provisions hold harmless all past and present officers and directors of the Company ("Indemnified Persons") to the same extent and in the same manner such persons are indemnified as of the date of this Agreement by the Company pursuant to any indemnification agreements by and among between the Company and its directors and certain executive officers as of the date hereof, the MBCA, the Company Articles of Incorporation and the Company Bylaws for acts or omissions occurring at or prior to the Effective Time. Parent shall guarantee the indemnification, insurance, advancement and other obligations of the Surviving Corporation set forth in this Section 5.10. The Articles of Incorporation and the Bylaws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification that are at least as favorable to the Indemnified Persons as those contained in the Company Articles of Incorporation and the Company Bylaws as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or immediately prior to the Effective Time, were directors, officers, employees, fiduciaries employees or agents of the Company, unless such a modification shall be is required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.-37-
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for For a period of six (6) years from the Effective Time and for so long thereafter as any claim for insurance coverage asserted on or prior to the current directors’ end of such six-year period has not been adjudicated, Parent shall use its reasonable best efforts to cause the Surviving Corporation to maintain in effect (or Parent may instead elect to maintain pursuant to Parent's policy or policies) for the benefit of the Indemnified Persons' insurance and officers’ liability insurance policies maintained by the Company with respect to matters indemnification policy that provides coverage for acts or omissions occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and Time that is substantially equivalent to the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) Company's existing policy on terms with respect to coverage and amount no less favorable to in the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are aggregate no less favorable than those provided under of such policy in effect on the Company’s current policiesdate hereof, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, furtherhowever, that in no event shall the Surviving Company Corporation shall not be required to expend pursuant to this Section 6.05(b) more than pay an amount per year equal to 300% of current annual premiums paid by the Company premium for such insuranceinsurance in excess of $100,000, and if the cost of but in such insurance policy exceeds case shall purchase as much coverage as possible for such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject This Section 5.10 shall survive the consummation of the Merger, is intended to benefit the terms Company, the Surviving Corporation and conditions each Indemnified Person, shall be binding on all successors and assigns of the Surviving Corporation and Parent, and shall be enforceable by the Indemnified Persons. The provisions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company 5.10 are intended to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company of, and will be enforceable by, each Indemnified Person, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any of its Subsidiariesother rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) In the event the Company or Parent, the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving 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 so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the its obligations set forth in this Section 6.05Section.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Manatron Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) a. The indemnification, advancement Certificate of Incorporation and exculpation provisions By-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification agreements by and among than are currently set forth in the Certificate of Incorporation of the Company and its directors and certain executive officers as in effect at the Effective Time shall survive By-laws of the Merger and Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From law.
b. For not less than six (6) years from and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Corporation to indemnify and hold harmless all past and present directors, officers and employees of the Company to(the “Indemnified Persons”) with respect to all acts or omissions by them in their respective capacities occurring at or prior to the Effective Time to the same extent such Persons are indemnified as of the date of this Agreement by the Company pursuant to (i) the Company Governing Documents as in effect on the date of this Agreement and (ii) indemnification agreements, maintain if any, in existence on the date of this Agreement with any directors, officers or employees of the Company.
c. The Surviving Corporation shall maintain, in effect for six (6) years from and after the Effective Time the current Time, insurance “tail” or other insurance policies with respect to directors’ and officers’ liability insurance policies maintained by the Company with respect relating to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement an amount and scope at least as favorable as the consummation coverage applicable to directors and officers of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect Company as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, furtherhowever, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more if such “tail” or other policies are not available at an annual cost not greater than an amount per year equal to 300200% of current the last annual premiums premium paid by prior to the Company for date hereof under such insurance, and if policy (the cost of such insurance policy exceeds such amount“Insurance Cap”), then the Surviving Company Corporation shall obtain a policy with the greatest coverage for cause to be obtained as much comparable insurance as can reasonably be obtained in its good faith judgment at a cost up to but not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateInsurance Cap.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Epocrates Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationParent shall cause the Surviving Corporation and its Subsidiaries to, advancement honor and exculpation provisions fulfill in all respects the obligations of the indemnification agreements by and among the Company and its directors Subsidiaries under any and certain executive officers as in effect at all indemnification Contracts between the Effective Time shall survive the Merger Company or any of its Subsidiaries and shall not be amended, repealed or otherwise modified for a period any of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the their respective current or former directors and officers and any person who becomes a director or officers officer of the Company or any of its SubsidiariesSubsidiaries prior to the Effective Time (the “Indemnified Persons”). The memorandum In addition, during the period commencing at the Effective Time and articles ending on the sixth anniversary of association the Effective Time, the Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) cause the certificate of incorporation and bylaws (and other similar organizational documents) of the Surviving Company shall Corporation and its Subsidiaries to contain provisions no less favorable to the intended beneficiaries with respect to indemnification, exculpation and indemnification of liability and the advancement of expenses than are set forth in expenses, covering acts and omissions of directors and officers (and any other employees or agents who otherwise would be entitled to similar benefits thereunder pursuant to the memorandum and articles of association of the Company as terms thereof in effect on the date hereof), and Parent shall cause such provisions not be amendedin each case in their respective capacities as such, 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, occurring at or prior to the Effective Time, were directorsthat are at least as favorable as the indemnification, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From exculpation and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses provisions contained in the certificate of incorporation and bylaws (or other similar organizational documents) of the Company and its Subsidiaries as of the date hereof, and during such six-year period, such provisions shall not be assumed repealed, amended or otherwise modified in any manner except as required by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsapplicable Law.
(b) The Surviving Company shallWithout limiting the generality of the provisions of Section 6.7(a), and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid fullest extent permitted by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Timeapplicable Law, the Surviving Company shall, Corporation and Parent its Subsidiaries shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, Corporation and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to to) indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the each Indemnified Parties Person from and against any costs, fees and all costs or expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, actionproceeding, suit, proceeding investigation or investigationinquiry, whether civil, criminal, administrative or investigative investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (“Damages”), arising out of, relating to i) any action or omission or alleged action or omission in connection with (A) the fact that an such Indemnified Party is or was Person’s capacity as a director, officer officer, employee or employee agent of the Company or any of its Subsidiaries or (B) any acts other Affiliates occurring at or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to or (ii) any of the extent provided under transactions contemplated by this Agreement, in each case regardless of whether such claim, proceeding, investigation or inquiry is made, occurs or arises prior to, at or after the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and Effective Time. In addition, to the fullest extent permitted by the CICL or any other applicable Law; provided, the Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such claim, proceeding, investigation or inquiry upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification. In the event of any such claim, proceeding, investigation or inquiry, (A) the Surviving Corporation and Parent shall have the right (but not the obligation) to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, Parent will be deemed to have waived any right to object to the Indemnified Person’s entitlement to indemnification hereunder with respect thereto), (B) each Indemnified Person shall be subject entitled to retain his or her own counsel, which counsel shall be reasonably satisfactory to Parent and the Surviving Corporation, whether or not Parent shall elect to control the defense of any such claim, proceeding, investigation or inquiry, (C) the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all reasonable fees and expenses of any counsel retained by an Indemnified Person, promptly after statements therefor are received, whether or not Parent shall elect to control the defense of any such claim, proceeding, investigation or inquiry, and (D) neither Parent or the Surviving Corporation on the one hand nor any Indemnified Person on the other hand shall be liable for any settlement effected without his or her prior express written consent. Notwithstanding anything to the contrary set forth in this Section 6.7(b) or elsewhere in this Agreement, the Surviving Corporation and Parent shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties for any Indemnified Parties in any jurisdiction with respect to any limitation imposed from time single action) except to time the extent that two or more of such Indemnified Parties shall have actual material conflict of interest in such action.
(c) Prior to the Effective Time, notwithstanding anything to the contrary set forth in this Agreement, the Company may purchase a six-year “tail” prepaid policy on the D&O Insurance. In the event that the Company purchases such a “tail” policy prior to the Effective Time, Parent and the Surviving Corporation shall maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Corporation under applicable Law; the first sentence of this Section 6.7(c) for so long as such “tail” policy shall be maintained in full force and effect. In the event that the Company does not so purchase a “tail” policy prior to the Effective Time, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, Parent and the Surviving Corporation shall maintain in effect the Company’s current directors’ and officers’ liability insurance (ii“D&O Insurance”) such persons against any and all Damages arising out in respect of acts or omissions occurring at or prior to the Effective Time, covering each person covered by the D&O Insurance, on terms with respect to the coverage and amounts that are equivalent to those of the D&O Insurance; provided however, in such persons’ official capacity as an officersatisfying its obligations under this Section 6.7(c), director or other fiduciary Parent and the Surviving Corporation shall not be obligated to pay annual premiums in excess of three hundred percent (300%) of the amount paid by the Company or any of for coverage for its Subsidiaries if last full fiscal year (such service was at three hundred percent (300%) amount, the request or for “Maximum Annual Premium”) (which premiums the benefit Company represents and warrants to be as set forth in Section 6.7(c) of the Company or any Disclosure Letter), provided that if the annual premiums of its Subsidiariessuch insurance coverage exceed such amount, Parent and the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium.
(d) In the event the Company If Parent or the Surviving Company Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger 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 the Company or Surviving Corporation shall assume all of the obligations of Parent and the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the Corporation set forth in this Section 6.7.
(e) The obligations set forth in this Section 6.05.
6.7 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person (eor any other person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 6.7(c) The agreements (and covenants contained their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other person who is a beneficiary under the D&O Insurance or the “tail” policy referred to in Section 6.7(c) (and their heirs and representatives). Each of the Indemnified Persons or other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 6.7(c) (and their heirs and representatives) are intended to be third party beneficiaries of this Section 6.05 6.7, with full rights of enforcement as if a party thereto. The rights of the Indemnified Persons (and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 6.7(c) (and their heirs and representatives)) under this Section 6.7 shall be in addition to to, and not in substitution for, any other rights an Indemnified Party that such persons may have under the memorandum and certificate or articles of association incorporation, bylaws or other equivalent organizational documents, any and all indemnification agreements of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and entered into by the Company or any of its Subsidiaries, under the CICL or other applicable Law, Law (whether at law or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyequity).
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or for any of their respective officersdirectors, directors and officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.7 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at on the Effective Time date hereof shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its SubsidiariesSubsidiaries (the “Indemnified Parties”). The memorandum and articles of association of the Surviving Company Corporation as of the Effective Time shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not to be amended, repealed or otherwise modified for a period of six (6) years from after the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement Contract of any Indemnified Party with the Company or any of its Subsidiaries regarding the exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current purchase an extended discovery period of its directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to policy prepaid from the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation Time for a period of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to 6) years after the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company, provided that the aggregate premiums therefor shall not be in excess of US$950,000. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b6.05(a) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (comply, and Parent shall cause the Surviving Company Corporation to comply) , with all of the Company’s obligations, and each of the Surviving Company Corporation and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective constitutional, organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in of the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, ; it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for For a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no not less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to following the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent the Purchaser shall cause the Surviving Company Corporation to, maintain (i) indemnify and hold harmless all past and present directors, officers and employees (in effect for six (6all of their capacities) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by of the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions its Subsidiaries (the parties covered therebysuch persons, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits extent such persons are indemnified as of liability that are no less favorable than those provided under the date hereof by the Company pursuant to the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend or any of its Subsidiaries’ articles of incorporation and bylaws or pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by indemnification agreements with such persons, in each case as in existence on the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)date hereof, arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred prior to the Effective Time (including for acts or omissions occurring in connection with respect to the approval of this Agreement or and the Transactions or arising out consummation of or pertaining the transactions contemplated hereby), and (ii) include and cause to be maintained in effect in the Transactions and actions to enforce this provision Surviving Corporation’s (or any other indemnification or advancement right successor’s) articles of any Indemnified Party) prior to or at incorporation and bylaws after the Effective Time, provision regarding the elimination of liability of directors and officers and the indemnification of the Indemnified Parties which are, in the aggregate, no less advantageous to the extent provided intended beneficiaries than the corresponding provisions contained in the current articles of incorporation and bylaws of the Company.
(b) The Surviving Corporation shall, and the Purchaser shall cause the Surviving Corporation to maintain for a period of at least six (6) years after the Effective Time coverage under the Company’s or such Subsidiariesdirectors’ respective organizational and governing documents or agreements officers’ liability insurance policies as in effect on the date hereof (true and complete copies of which shall have been delivered to Parent for acts or omissions occurring prior to the date hereofEffective Time (“D&O Insurance”); provided that (A) the Purchaser may substitute therefor policies with a reputable insurer of comparable credit quality of substantially similar coverage and amounts containing terms no less advantageous individually or in the aggregate to the fullest extent permitted Indemnified Parties, (B) if the existing D&O Insurance expires or is canceled during such period, the Purchaser and the Surviving Corporation will use their reasonable best efforts to obtain substantially similar D&O Insurance from a reputable insurer of comparable credit quality, (C) in no event shall the Purchaser or the Surviving Corporation be required to expend more than 250% of the last annual premiums paid by the CICL Company immediately prior to the Effective Time (which the Company represents and warrants to be the amount set forth in Section 5.9(b) of the Company Disclosure Schedule) (the “Maximum Premium Amount”) to maintain or any other applicable Law; provided, that such indemnification shall be subject procure D&O Insurance pursuant to any limitation imposed from time to time under applicable Law; this Section 5.9 and (iiD) if the annual premiums of such persons against any and all Damages arising out D&O Insurance would exceed the Maximum Premium Amount, the Purchaser or the Surviving Corporation shall obtain a policy with the greatest coverage reasonably available for a cost not exceeding the Maximum Premium Amount. In lieu of the foregoing, the Purchaser may, or may cause the Surviving Corporation to, purchase six-(6) year tail coverage covering acts or omissions in such persons’ official capacity as an officerprior to the Effective Time on terms not materially less favorable to any director, director officer or other fiduciary in employee to the Company or any of its Subsidiaries if such service was at the request or for the benefit existing policy of the Company or as in effect on the date hereof.
(c) The provisions of this Section 5.9 shall survive consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties. The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any of its Subsidiariesother rights such Indemnified Party may have under any other indemnification arrangement.
(d) In If the event the Company Purchaser or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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, then and in each such either case, proper provision shall be made so that the successors and assigns of the Company Purchaser or the Surviving Company, as the case may be, or at Parent’s option, Parent, Corporation shall assume the obligations in this Section 5.9.
(e) The Purchaser and the Surviving Corporation shall pay all reasonable costs and expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in successfully enforcing the indemnity and other obligations set forth in this Section 6.055.9.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among between the Company and its directors and certain executive officers officers, as in effect at the Effective Time Time, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) honor and fulfill in all respects the obligations of the Group Companies under (i) any indemnification, advancement of expenses and exculpation provision set forth in any memorandum and articles of association or comparable organizational documents of the Company or any of its Subsidiaries as in effect on the date of this Agreement, and (ii) all indemnification agreements between the Company or any of its Subsidiaries and any Indemnified Party. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, (including for acts or omissions occurring in connection with this Agreement and the consummation of the Transactions Transactions) maintained by the Company or any of its Subsidiaries covering each current or former director or officer and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (the parties covered therebyeach, the an “Indemnified PartiesParty”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect ), covered as of the Effective Time, on terms no less favorable than those of such policies in effect on the date hereof; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.05(b), the Company may andmay, at Parent’s request, the Company shallits option, purchase a six six- (6)-year 6-) year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigationAction, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons Indemnified Parties against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was arising out of, relating to or in connection with any acts or omissions occurring or alleged to occur prior to or at the request Effective Time in such Indemnified Party’s capacity as a director, officer or for the benefit other fiduciary of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or Company, the Surviving Company, or Parent, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (Sina Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Merger Agreement provides for certain indemnification, expense advancement and exculpation provisions rights in favor of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the Company’s current or former directors and officers (and any person who becomes a director or officers officer of the Company Company) and any individual serving or who served as a director, officer, member, manager, partner, trustee or fiduciary of any of its Subsidiariescorporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the Company’s request, in each case prior to the Effective Time, who we refer to as “Indemnified Persons”. The memorandum and articles of association In addition, for six years following the Effective Time, the organization documents of the Surviving Company shall Corporation will contain provisions with respect to indemnification, expense advancement, and exculpation that are no less favorable to the intended beneficiaries with respect to Indemnified Persons than the indemnification, expense advancement, and exculpation and indemnification of liability and advancement of expenses than are set forth provisions contained in the memorandum and articles of association organizational documents of the Company as of the date of the Merger Agreement. The Merger Agreement also provides that, for six years following the Effective Time, Parent will, and will cause the Surviving Corporation to, maintain in effect on for the benefit of the directors and officers of the Company, as of the date hereofof the Merger Agreement and as of the Effective Time, an insurance and Parent shall cause such provisions not be amended, repealed or otherwise modified indemnification policy that provides coverage for a period of six (6) years from events occurring prior to the Effective Time (the “D&O Insurance”) that is substantially equivalent to and in any manner that would affect adversely event providing coverage, terms, conditions, retentions, limits of liability, deductibles and amounts not less favorable to the rights thereunder insured persons than the policies of individuals whothe Company in effect as of the date of the Merger Agreement. However, the Surviving Corporation will not be required to pay an annual premium for the D&O Insurance in excess of 300% of the last annual TABLE OF CONTENTS premium paid prior to the date of the Merger Agreement, but in such case shall purchase coverage as favorable to the insured persons as is available for such amount as long as such substitution does not result in gaps or lapses of coverage with respect to matters occurring at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement From and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at after the Effective Time Time, Parent shall survive cause the Merger Surviving Company to agree that it will indemnify and 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 the rights thereunder of the current or hold harmless each present and former directors or officers director and officer of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six Subsidiaries (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided), that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damagessettlements, damages or liabilities and amounts paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigationActions, whether civil, criminal, administrative or investigative (“Damages”)and whether formal or informal, arising out of, relating to or in connection with matters existing or occurring at or prior to the Effective Time (A) including the fact that an Indemnified Party such Person is or was a director, director or officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred occur (including acts or omissions with respect to the approval of this Agreement or the Transactions transactions contemplated hereby or arising out of or pertaining to the Transactions transactions contemplated hereby and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent provided that the Company would have been permitted under the Company’s or such Subsidiaries’ respective organizational Laws of the British Virgin Islands and governing documents or agreements its Memorandum and Articles of Association in effect on the date hereof of this Agreement to indemnify such Person and Parent or the Surviving Company shall advance expenses (true including reasonable legal fees and complete copies expenses) incurred in the defense of any Action, including any expenses incurred in successfully enforcing such Person’s rights under this Section 6.10.
(b) Parent shall cause the Surviving Company to honor and perform the obligations under any indemnification provision and any exculpation provision in the Company’s Memorandum and Articles of Association. The provisions in the Surviving Company’s memorandum and articles of association with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Memorandum and Articles of Association in effect as of the date hereof, which provisions shall have been delivered not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party except as required by applicable Law.
(c) Parent shall maintain, or shall cause the Surviving Company to maintain, at no expense to the beneficiaries, in effect for at least six years from the Effective Time the current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that Parent or the Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof) with respect to matters existing or occurring at or prior to the Effective Time and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance; provided, however, that after the Effective Time, Parent and the Surviving Company shall not be required to pay pursuant to this Section 6.10(c) more than an amount per annum equal to 300% of the last annual premium paid by the Company prior to the date hereofhereof in respect of the coverage required to be obtained pursuant hereto under each such policy, but in such case shall purchase as much coverage as reasonably practicable for such amount. In lieu of maintaining the directors’ and officers’ liability insurance policies pursuant to the first sentence of this Section 6.10(c) and at Parent’s request, the Company shall purchase from insurance carriers with comparable credit ratings, no later than the Effective Time, a six-year prepaid “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous to the fullest extent permitted insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the CICL Company and its Subsidiaries with respect to claims arising from facts or any other applicable Law; providedevents that occurred at or before the Effective Time, that including the transactions contemplated hereby, and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance. In the event Parent elects for the Company to purchase such a “tail policy”, the Surviving Company shall (and Parent shall cause the Surviving Company to) maintain such “tail policy” in full force and effect and continue to honor their respective obligations thereunder. Xxxxxx agrees to honor and perform under, and to cause the Surviving Company to honor and perform under, for a period of six years after the Effective Time, all indemnification shall be subject to any limitation imposed from time to time under applicable Law; agreements by and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in among the Company or any of its Subsidiaries if such service was at the request or for the benefit and any Indemnified Party as in effect as of the Company or any of its SubsidiariesEffective Time.
(d) In the event the Company If Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates shall consolidate or amalgamate with or merges merge into any other person corporation or entity and shall not be the continuing continuing, merged or Surviving Company surviving company 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 or the Surviving Company, as the case may be, or at Parent’s option, Parent, Company shall assume all of the obligations set forth in this Section 6.056.10.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 6.10 shall survive the consummation of Merger and, following the Merger and Effective Time, are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representativesRepresentatives, each of which shall be a Third Party third party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party6.10.
(f) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the Memorandum and Articles of Association of the Company or the comparable governing instruments of any of its Subsidiaries, or under any applicable contracts or Laws. 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.10 is not prior to to, or in substitution for for, any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (Hollysys Automation Technologies, Ltd.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFor a period of six years from and after the Effective Time, advancement the Surviving Company and exculpation provisions its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) (i) honor and fulfill in all respects the obligations of the indemnification agreements by and among the Company and its Subsidiaries under any and all indemnification agreements in the forms referenced on Section 5.9(a) of the Company Disclosure Letter between the Company or any of its Subsidiaries and any past and present officers and directors of the Company ("Indemnified Persons"); and certain executive officers (ii) indemnify, advance expenses to, and hold harmless all Indemnified Persons to the same extent and in the same manner such persons are indemnified as of the date of this Agreement by the Company pursuant to any indemnification agreements between such Indemnified Persons and the Company, the ICL, the Company Articles of Association and Company Memorandum for acts or omissions occurring at or prior to the Effective Time; provided, however, in the case of advancement of expenses, any person to whom expenses are advanced provides an undertaking, to the extent required by the ICL, to repay such advance if it is ultimately determined that such person is not entitled to indemnification. The Articles of Association of the Surviving Company will contain provisions with respect to exculpation, advancement and indemnification that are at least as favorable to the Indemnified Persons as those contained in the Company Articles of Association and the Company Memorandum as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the current Effective Time, were directors, officers, employees or former directors or officers agents of the Company or any Company, unless such a modification is required by Law.
(b) From the Effective Time until the sixth anniversary of its Subsidiaries. The memorandum the Effective Time, Parent and articles of association of the Surviving Company shall contain provisions no less favorable to maintain in effect, for the intended beneficiaries benefit of the Indemnified Persons with respect to exculpation their acts and indemnification omissions as directors, officers, employees or agents of the Company occurring prior to the Effective Time, the existing policy of directors' and officers' liability insurance maintained by the Company as of the date of this Agreement in the form delivered by the Company to Parent prior to the date of this Agreement (the "Existing D&O Policy"), to the extent that directors' and advancement officers' liability insurance coverage is commercially available; provided, however, that: (i) Parent and the Surviving Company may substitute for the Existing D&O Policy a policy or policies of expenses than are comparable coverage, including a "tail" insurance policy; and (ii) the Surviving Company shall not be required to pay annual premiums for the Existing D&O Policy (or for any substitute or "tail" policies) in excess of $375,250 (the "Maximum Premium") which amount, the Company hereby represents to be equal to two hundred fifty percent (250%) of the amount paid by the Company for coverage for its last full fiscal year. In the event any future annual premiums for the Existing D&O Policy (or any substitute policies) exceed the Maximum Premium, the Surviving Company shall be entitled to reduce the amount of coverage of the Existing D&O Policy (or any substitute or "tail" policies) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium so as to provide for a policy with the greatest coverage available for a cost not exceeding the Maximum Premium.
(c) The rights set forth in the memorandum this Section 5.9 are in addition to, and articles of association of the Company as not in effect on the date hereoflimitation of, and Parent shall, and shall cause such provisions not be amendedthe Surviving Company to, repealed or otherwise modified enforce and honor, to the fullest extent permitted by Law for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject rights otherwise available to the terms current officers and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee directors of the Company or any of and its Subsidiaries by Law, charter, bylaw or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective TimeContract, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be operate for the benefit of, and shall be enforceable by, each of the Indemnified Parties Persons and their heirs Representatives and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or for any of their respective officersdirectors, directors and officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.05 5.9 is not prior to or in substitution for any such claims under such policies.
(d) In the event Parent, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such policies consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company, as the case may be, shall assume the obligations set forth in this Section 5.9.
(e) The obligations set forth in this Section 5.9 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person (or any other person who is a beneficiary under the D&O Insurance or the "tail" policy referred to in Section 5.9(b) (and their heirs and representatives)) without the prior written consent of such affected Indemnified Person or other agreementsperson who is a beneficiary under the D&O Insurance or the "tail" policy referred to in Section 5.9(b) (and their heirs and representatives). Each of the Indemnified Persons or other persons who are beneficiaries under the D&O Insurance or the "tail" policy referred to in Section 5.9(b) (and their heirs and representatives) are intended to be third party beneficiaries of this Section 5.9, with full rights of enforcement as if a party thereto. The rights of the Indemnified Persons (and other persons who are beneficiaries under the D&O Insurance or the "tail" policy referred to in Section 5.9(b) (and their heirs and representatives)) under this Section 5.9 shall be in addition to, and not in substitution for, any other rights that such persons may have under the Company Memorandum, the Company Articles of Association the equivalent organizational documents of any Subsidiaries, any and all indemnification agreements of or entered into by the Company or any of its Subsidiaries, or applicable Law (whether at law or in equity).
(f) The obligations and liability of the Surviving Company, Parent and their respective Subsidiaries under this Section 5.9 shall be joint and several.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and Merger Sub agree to cause the Surviving Corporation to assure that all rights to indemnification, advancement of expenses, and exculpation provisions 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 indemnification agreements Company or any of its Subsidiaries (each an “Indemnified Party”) for any acts or omissions by and among such Indemnified Party occurring prior to the Company and its directors and certain executive officers Effective Time, as provided in the Charter Documents of the Company, in each case as in effect on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.08 of the Company Disclosure Letter, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall not be amended, repealed or otherwise modified for remain in full force and effect in accordance with their terms. For a period of six years from the Effective Time Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification, and advancement of expenses at least as favorable to the provisions of the Charter Documents of the Company as in effect as of the date of this Agreement with respect to acts or omissions by any Indemnified Party occurring prior to the Effective Time, and shall not (except as required by applicable Law) amend, repeal, or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable Indemnified Party; provided that all rights to the intended beneficiaries with indemnification in respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or claim made for indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and within such period shall continue in full force and effect in accordance with its termsuntil the disposition of such action or resolution of such claim.
(b) The Surviving Company shall, and Parent shall cause obtain as of the Surviving Company to, maintain in effect for Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the current same coverage and amounts as in the Company’s directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those policy in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage date hereof (“D&O Insurance”) and containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those advantageous to the Indemnified Parties, 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) (the “D&O Tail Policy”); provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to cost of the D&O Tail Policy exceed 300% of current the annual premiums premium paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Timedate hereof in respect of the D&O Insurance. During the term of the D&O Tail Policy, the Surviving Company shall, Parent shall not (and Parent shall cause the Surviving Company Corporation not to, maintain such policies in full force and effect, and continue ) take any action following the Closing to honor cause the respective obligations thereunder, and all other obligations of Parent D&O Tail Policy to be cancelled or Surviving Company under this Section 6.05(b) shall terminateany provision therein to be amended or waived.
(c) Subject The obligations of Parent, Merger Sub, 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 terms and conditions consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.08 applies shall be third party beneficiaries of this Section 6.055.08, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of whom may enforce the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval provisions of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its SubsidiariesSection 5.08).
(d) In the event the Company or Parent, the Surviving Company Corporation or any of their respective successors or assigns assigns: (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of in such consolidation or merger merger; or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the all of its applicable obligations set forth in this Section 6.05.
(e) 5.08. The agreements and covenants contained in this Section 6.05 herein shall not be in addition deemed to be exclusive of any other rights an to which any Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents)is entitled, or any agreement between an Indemnified Party and the Company or any of its Subsidiarieswhether pursuant to Law, under the CICL or other applicable LawContract, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to to, or shall release, waive waive, or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors directors, and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 5.08 is not prior to to, or in substitution for for, any such claims under any such policies or other agreementspolicies.
(e) The Parent shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by the persons referred to in this Section 5.08 in connection with the valid and successful enforcement of their rights provided in this Section 5.08.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among between the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) honor and fulfill in all respects the obligations of the Group Companies under (i) any indemnification, advancement of expenses and exculpation provision set forth in any memorandum and articles of association or comparable organizational documents of the Company or any of its Subsidiaries as in effect on the date of this Agreement, and (ii) all indemnification agreements between the Company or any of its Subsidiaries and any Indemnified Party. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.05(b), the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationMerger Agreement provides for indemnification and insurance rights in favor of ARMO’s current and former directors, advancement officers, employees and agents, who we refer to as “indemnitees.” Specifically, Lilly and Purchaser have agreed that all rights to indemnification and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed from liabilities for acts or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, omissions occurring at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From Time (and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or rights to advancement of expenses shall be assumed by the Surviving Companyexpenses) now existing in favor of indemnitees as provided in ARMO’s certificate of incorporation or bylaws or under any indemnification agreement in effect as of May 9, shall 2018 and made available to Lilly will survive the Merger Offer Closing and shall the Merger, continue in full force and effect in accordance with its terms.
(b) The Surviving Company shalltheir respective terms and will for a period of six years following May 9, and Parent shall cause the Surviving Company to2018, maintain not be amended, repealed or otherwise modified in effect for six (6) years from a manner that would adversely affect any right thereunder of any indemnitee. At or prior to the Effective Time Time, ARMO may obtain and fully pay the current premium for “tail” directors’ and officers’ liability insurance policies maintained by the Company with in respect to matters of acts or omissions occurring at or prior to the Effective Time, Time (including for acts or omissions occurring in connection with this the approval of the Merger Agreement and the consummation of the Transactions Transactions) for the period beginning upon the Offer Closing Date and ending six years from the Effective Time, covering each indemnitee and containing terms (the parties covered thereby, the “Indemnified Parties”) on terms including with respect to coverage and amount amounts) and conditions (including with respect to deductibles and exclusions) that are in the aggregate, no less favorable to the Indemnified Parties any indemnitee than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the CompanyARMO’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained policies in effect on the date of the Merger Agreement. However, the maximum aggregate annual premium for such “tail” insurance policies shall not exceed 250% of the aggregate annual premium payable by the CompanyARMO for coverage for its current fiscal year under its existing D&O policies. If such “tail” prepaid insurance policies have been obtained by the Company prior to the Effective TimeARMO, the Surviving Company shall, and Parent Xxxxx shall cause the Surviving Company to, maintain such “tail” insurance policies to be maintained in full force and effect, and continue to honor the respective obligations thereunderfor their full term, and cause all other obligations thereunder to be honored by it and the Surviving Corporation. In the event ARMO does not obtain such “tail” insurance policies, then, for the period beginning upon the Offer Closing Date and ending six years from the Effective Time, Xxxxx shall either purchase such “tail” insurance policies or Xxxxx shall maintain in effect the Existing D&O Policies in respect of Parent acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of the Merger Agreement and the consummation of the Transactions). However, neither Lilly nor the Surviving Company Corporation shall be required to pay an aggregate annual premium for such insurance policies in excess of 250% of the annual premium payable by ARMO for coverage for its current fiscal year under this Section 6.05(bits existing D&O policies, and, if the annual premium of such insurance coverage exceeds such amount, Lilly or the Surviving Corporation shall be obligated to obtain the most comparable policy available for an annual premium equal to such amount and Lilly may substitute therefor policies of a reputable and financially sound insurance company containing terms (including with respect to coverage and amounts) shall terminate.
and conditions (cincluding with respect to deductibles and exclusions) Subject that are, individually and in the aggregate, no less favorable to any indemnitee. Reasonable Best Efforts. Upon the terms and subject to the conditions set forth in the Merger Agreement, each of this ARMO, Lilly and Purchaser has agreed to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, as promptly as reasonably practicable, the Offer, the Merger and the Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with, and the taking of all reasonable steps as may be necessary to avoid a claim, suit, action, arbitration, investigation or proceeding (“Proceeding”) by, any governmental entity with respect to the Merger Agreement or the transaction contemplated by the Merger Agreement, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging the Merger Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other governmental entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of the Merger Agreement. In connection with and without limiting the foregoing, ARMO and ARMO Board shall (A) take all action necessary to ensure that no restrictions on business combinations of any takeover law or similar statute or regulation is or becomes applicable to any transaction contemplated by the Merger Agreement or the Merger Agreement and (B) if the restrictions on business combinations of any takeover law or similar statute or regulation becomes applicable to any transaction Table of Contents contemplated by the Merger Agreement or the Merger Agreement, use its reasonable best efforts take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by the Merger Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and the Merger Agreement. Xxxxx and ARMO shall, or shall cause their ultimate parent entity as that term is defined in the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) to, in consultation and cooperation with the other, file (i) with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Offer, the Merger or the other Transactions as promptly as practicable (but in no event later than ten business days after the date of the Merger Agreement) and (ii) all appropriate filings, notices, applications or similar documents required under any foreign antitrust law as promptly as reasonably practicable. Xxxxx shall with ARMO’s reasonable cooperation file all appropriate filings, notices, applications or similar documents required under any foreign antitrust law as promptly as reasonably practicable. Any such filings shall be in substantial compliance with the requirements of the HSR Act or the applicable foreign antitrust laws, as the case may be. Each of Lilly and ARMO shall (i) furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission which is necessary under the HSR Act or any foreign antitrust law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other governmental entity regarding the Offer, the Merger or the other Transactions, and permit the other party (or its outside counsel if necessary to retain confidentiality) to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable law or by the applicable governmental entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any governmental entity in respect of the Offer, the Merger or the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable law or by the applicable governmental entity from participating in or attending any such meeting or engaging in any such conversation, keep such party apprised with respect thereto, (D) cooperate with one another in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending the Merger Agreement, the Offer, the Merger or the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any governmental entity and (E) furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective representatives, on the one hand, and any governmental entity or members of any governmental entity’s staff, on the other hand, with respect to the Merger Agreement, the Offer, the Merger and the other Transactions and (iv) comply with any inquiry or request from the FTC, the DOJ or any other governmental entity as promptly as reasonably practicable. Any such additional information shall be in substantial compliance with the requirements of the HSR Act or the applicable foreign antitrust law, as the case may be. The parties agree not to extend, directly or indirectly, any waiting period under the HSR Act or any foreign antitrust law or enter into any agreement with a governmental entity to delay or not to consummate the Offer, the Merger or the other Transactions, except with the prior written consent of the other party, which consent shall not be unreasonably withheld. Without limiting the generality of the foregoing, each Party shall provide to the other (or the other’s respective advisors) upon request copies of all correspondence between such Party and any governmental entity relating to the Transactions. XXXX, Xxxxx and Purchaser may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under Section 6.056.02 of the Merger Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, from officers, or directors of the recipient without the advance written consent of the party providing such materials. Xxxxx and Xxxxxxxxx agree to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under the HSR Act or any Table of Contents foreign antitrust law that may be required by any governmental entity, so as to enable the parties to close the Transactions as promptly as practicable (and in any event by or before than the Outside Date); provided, however, that nothing in Section 6.02 of the Merger Agreement and notwithstanding anything to the contrary in the Merger Agreement, neither Lilly nor Purchase shall have any obligation to (or to cause any of their respective subsidiaries or affiliates or ARMO to): (i) sell, license, divest or dispose of or hold separate the assets, intellectual property or businesses of any entity; (ii) terminate, amend or assign any existing relationships or contractual rights or obligations of any entity; (iii) change or modify any course of conduct regarding future operations of any entity; (iv) otherwise take any action that would limit the freedom of action with respect to, or the ability to retain, one or more businesses, assets or rights of any entity or interests therein; or (v) commit to take any such action in the foregoing clause (i), (ii), (iii) or (iv); provided, however, that Lilly and Purchaser shall take the actions in the foregoing clause (i), (ii), (iii) or (iv) with respect to ARMO (including, after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to complyCorporation) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with if such action (A) is necessary to obtain required clearances or waiting period expirations or terminations as may be required under the fact that an Indemnified Party is or was a director, officer or employee of the Company HSR Act or any of its Subsidiaries foreign antitrust law by or before the Outside Date and (B) would not, individually or in the aggregate, reasonably be expected to be materially detrimental to the benefits anticipated to be derived by Xxxxx and its affiliates as a result of the Transactions. In addition, ARMO shall not offer or commit to take any acts of the actions referred to in clause (i), (ii), (iii) or omissions occurring or alleged to have occurred (including acts or omissions iv) of the immediately preceding sentence without Xxxxx’x prior written consent. For the avoidance of doubt, Xxxxx shall not require ARMO to, and ARMO shall not be required to, take any action with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision any order or any other indemnification or advancement right of any Indemnified Party) applicable law that binds ARMO prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and Acquisition Sub agree that all rights to exculpation, indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability contribution and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereoffor facts, and Parent shall cause such provisions not be amendedevents, repealed acts 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, omissions occurring at or prior to the Effective Time, were directorswhether asserted or claimed prior to, officers, employees, fiduciaries at or agents of the Company, unless such modification shall be required by Law. From and after the Effective TimeTime (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of the current or former directors, officers or employees of (or in a comparable role with) the Company or its Subsidiaries, or any agreement person serving at the request of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation as a director, officer or employee of (or in a comparable role with) another Person (the “D&O Indemnified Parties”), as the case may be, in each case, as provided in the respective organizational documents of the Company or its Subsidiaries or any indemnification or similar agreements in effect as of liability the date hereof that have been made available to Parent or advancement of expenses shall be assumed that are in substantially the form included in the Company SEC Documents filed with or furnished to the SEC by the Surviving CompanyCompany on or after the Spin Date and prior to the date of this Agreement, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
their terms (b) The Surviving Company shallit being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall and shall cause the Surviving Company toCorporation and its Subsidiaries to perform such obligations thereunder. Parent shall cause the certificate of incorporation, maintain bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee (or comparable) liability that are no less favorable to the D&O Indemnified Parties than those set forth in effect the Company’s and its Subsidiaries’ organizational documents as of the Closing Date, which provisions thereafter shall not, for a period of at least six (6) years from the Effective Time Time, be amended, repealed or otherwise modified in any manner that would adversely affect the current directors’ rights thereunder of the D&O Indemnified Parties, except at required by applicable Law.
(b) Without limiting the foregoing, Parent shall (and officers’ liability insurance policies maintained by Parent shall cause the Company Surviving Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, the D&O Indemnified Parties with respect to matters occurring prior to the Effective Timeall facts, including events, acts or omissions occurring by them in their capacities as such at any time prior to and including the Effective Time (including any matters arising in connection with this Agreement or the transactions contemplated hereby), to the fullest extent that the Company or its Subsidiaries would be permitted by applicable Law; and the consummation (ii) pay in advance of the Transactions final disposition of any Action against any D&O Indemnified Party the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon receipt, if required by the parties covered therebyDGCL, the “Surviving Corporation’s organizational documents or any applicable indemnification agreement, of a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined that such D&O Indemnified Parties”Party is not permitted to be indemnified under applicable Law. Notwithstanding anything to the contrary contained in this Section 6.6(b). or elsewhere in this Agreement, Parent shall not (and Parent shall cause the Surviving Corporation not to) on terms settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to coverage and amount no less favorable any Action to the which any D&O Indemnified Parties than those in effect as are parties, unless such settlement, compromise, consent or termination includes an unconditional release of all of the D&O Indemnified Parties covered by the Action from all liability arising out of such Action.
(c) For at least six (6) years after the Effective Time; provided, that Parent shall, and shall cause the Surviving Company may substitute therefor policies of at least Corporation and its other Subsidiaries to, maintain in full force and effect the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance, employment practices liability insurance and fiduciary liability insurance in effect as of the Closing Date and maintained by the Company or any of its Subsidiaries, as applicable (the “Existing D&O Insurance Policies”), or provide substitute policies (with the Company. If ’s current insurance carriers or other insurance carriers having an A.M. Best financial strength rating of least an “A”) for the Company and the D&O Indemnified Parties who are currently covered by such “tail” prepaid policies have been obtained Existing D&O Insurance Policies, in either case, with limits and on terms and conditions no less advantageous to the D&O Indemnified Parties than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided, that Parent or the Surviving Corporation, as applicable, shall not be required to pay an annual premium for such insurance in excess of three hundred percent (300%) of the aggregate annual premium currently paid by the Company or any of its Subsidiaries for the Existing D&O Insurance Policies (the “Maximum Amount”), but in such case shall purchase as much of such coverage as possible for such amount) and Parent shall not, and shall not permit the Surviving Corporation or its other Subsidiaries to, take any action that would intentionally prejudice the rights of, or otherwise impede recovery by, the beneficiaries of any such insurance, whether in respect of claims arising before or after the Effective Time (unless such beneficiary is not entitled to such recovery as a result of a final, non-appealable judicial determination under such insurance as a result of such beneficiary’s conduct). In lieu of such insurance, prior to the Effective Time, the Surviving Company shallmay purchase prepaid, non-cancellable six (6) year “tail” directors’ and officers’ liability insurance, employment practices liability insurance and fiduciary liability insurance (“Tail Coverage”), effective as of the Effective Time, with limits and on terms and conditions no less advantageous to the D&O Indemnified Parties than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided that the Company shall consult with Parent regarding the proposed terms and premium for such Tail Coverage and the premium for such Tail Coverage shall not exceed the Maximum Amount), and Parent shall cause the Surviving Company to, Corporation (or its applicable Subsidiaries) to maintain such policies Tail Coverage in full force and effect, without any modification, and continue to honor the respective obligations thereunder, and all other in which event Parent shall cease to have any obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions first sentence of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses6.6(c), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or that Parent, the Surviving Company Corporation, any of the Company’s Subsidiaries or any of their respective 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 Company surviving 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 the Company or Parent, the Surviving CompanyCorporation, any such Subsidiary or all or substantially all of its or their properties and assets, as the case may be, or at Parent’s option, Parent, shall assume assumes the obligations set forth in this Section 6.056.6.
(e) The agreements and covenants contained in D&O Indemnified Parties are third party beneficiaries of this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise6.6. The provisions of this Section 6.05 6.6 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties Party and their his or her successors, heirs and legal or representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation shall pay all reasonable expenses, including reasonable, documented attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other rights under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the 6.6. The rights of any each D&O Indemnified Party without the consent of such Indemnified Party.
(f) Nothing hereunder shall be in this Agreement is intended addition to, shall be construed to or shall releaseand not in limitation of, waive or impair any other applicable rights to directors’ and officers’ insurance claims such D&O Indemnified Party may have under any policy or other agreement that is or has been in existence with respect to the respective organizational documents of the Company or any of its Subsidiaries or their respective officersthe Surviving Corporation, directors and employeesany other indemnification arrangement, it being understood and agreed that applicable Law or otherwise.
(f) Notwithstanding anything herein to the indemnification provided for in contrary, if any claim (whether arising before, at or after the Closing) is made against any of the D&O Indemnified Parties on or prior to the sixth (6th) anniversary of the Closing Date, the provisions of this Section 6.05 is not prior to or 6.6 shall continue in substitution for any effect until the final disposition of such claims under any such policies or other agreementsclaim.
Appears in 1 contract
Samples: Merger Agreement (Veoneer, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger Amalgamation and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association incorporation and by-laws of the Surviving Company Corporation (or in such documents of any successor to the business of the Surviving Corporation) shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association incorporation and by-laws of the Company (or in such documents of any successor to the business of the Surviving Corporation) as in effect on the date hereof, and Parent shall cause such provisions to not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger Amalgamation and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ fiduciary liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage terms, conditions, retentions and amount limits of liability no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policiespolicies from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier; provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to three hundred percent (300% %) of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year six-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ fiduciary liability insurance policies maintained by the Company. If such “tail” prepaid policies have policy has been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies policy in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company Corporation to comply) with all of the Company’s obligations, and each of the Surviving Company Corporation and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL IBCA or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges amalgamates into any other person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger amalgamation 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association and by-laws of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL IBCA or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger Amalgamation and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, ; it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for For a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any all past and all costs or expenses (including reasonable attorneys’ fees present officers and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee directors of the Company or any of its Subsidiaries or (B) any for acts or omissions occurring at or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and Effective Time to the fullest extent permitted by the CICL DGCL or any other applicable LawLaw or provided under the Company Certificate of Incorporation and the Company Bylaws in effect on the date hereof; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and . Parent shall guarantee such performance by the Surviving Corporation.
(iib) such persons against any and all Damages arising out For a period of acts six (6) years from the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect (or omissions in such persons’ official capacity as an officer, director Parent may instead elect to maintain pursuant to Parent’s policy or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or policies) for the benefit of the Company Company’s current directors and officers an insurance and indemnification policy that provides coverage for acts or any omissions occurring prior to the Effective Time that is substantially equivalent to the Company’s existing policy on terms with respect to coverage in the aggregate no less favorable than those of its Subsidiariessuch policy in effect on the date hereof, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of 200% of the last annual premium paid prior to the Effective Date (which premium has been disclosed to Parent prior to the date hereof), but in such case shall purchase as much coverage as possible for such amount.
(dc) In This Section 5.10 shall survive the event consummation of the Company or Merger, is intended to benefit the Company, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person Corporation and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personeach indemnified party, then, and in each such case, proper provision shall be made so that the binding on all successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Corporation and Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under enforceable by the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwiseindemnified parties. The provisions of this Section 6.05 shall survive the consummation of the Merger and 5.10 are intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified Parties indemnified party, his or her heirs, and their heirs his or her representatives and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified are in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended addition to, shall be construed to or shall releaseand not in substitution for, waive or impair any other rights to directors’ and officers’ insurance claims under any policy indemnification or other agreement contribution that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies Person may have by contract or other agreementsotherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and the Surviving Corporation shall cause all rights to indemnification, advancement of expenses and exculpation provisions now existing in favor of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current present or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (Bthe “Indemnified Parties”) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent as provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger Organizational Documents 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any one of its SubsidiariesSubsidiaries (in effect as of 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 (6) years (plus ninety (90) days) after the Effective Time or, under if longer, for such period as is set forth in any applicable agreement with an Indemnified Party in effect as of the CICL date of this Agreement.
(b) Parent shall cause the Surviving Corporation to indemnify all Indemnified Parties to the fullest extent permitted by applicable Law with respect to all acts and omissions arising out of or relating to their services as directors, officers or employees of the Company, its Subsidiaries or another Person, if such Indemnified Party is or was serving as a director, officer or employee of such other applicable LawPerson at the request of the Company, whether asserted or claimed before, at or after, or otherwise. The provisions occurring before or at, the Effective Time (including in connection with the negotiation and execution of this Section 6.05 shall survive Agreement and the consummation of the Merger Transactions or otherwise). If any Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to indemnification hereunder, then Parent shall cause the Surviving Corporation to advance as incurred any costs or expenses (including legal fees and disbursements), judgments, fines, losses, claims, damages or Liabilities (“Damages”) arising out of or incurred in connection with such Legal Action, subject to the Surviving Corporation’s receipt of an undertaking by or on behalf of such Indemnified Party, if required by the MGCL, to repay such Damages if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified. In the event of any such Legal Action, (i) each of Parent and the Surviving Corporation shall cooperate with the Indemnified Party in the defense of any such Legal Action and (ii) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment, in each case on behalf of an Indemnified Party, in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action.
(c) Parent and the Surviving Corporation shall, jointly and severally, maintain in effect for at least six (6) years after the Effective Time the current policies of directors’ and officers’ liability insurance maintained by the Company or policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous 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 Transactions or otherwise) so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 350% of the last annual premium paid by the Company for such insurance before the date of this Agreement (such 350% amount being the “Maximum Premium”). If Parent or the Surviving Corporation are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, then Parent and the Surviving Corporation shall, jointly and severally, instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in lieu of the arrangements contemplated by this Section 5.6(c), before the Effective Time, the Company shall be entitled to purchase a “tail” directors’ and officers’ liability insurance policy covering the matters described in this Section 5.6(c) and, if the Company elects to purchase such a policy before the Effective Time, then Parent and the Surviving Corporation’s obligations under this Section 5.6(c) shall be satisfied so long as Parent and the Surviving Corporation cause such policy to be maintained in effect for a period of six (6) years following the Effective Time; provided, that the Company shall use its reasonable best efforts to apply any returned premium received by the Company in connection with the Company’s current policies of directors’ and officers’ liability insurance as a result of the Transactions contemplated by this Agreement to the cost of such “tail” policy.
(d) The covenants contained in this Section 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representativesrepresentatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(e) In the event that Parent or the Surviving Corporation or any of 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 of which such case, Parent and the Surviving Corporation shall be a Third Party beneficiary of take all necessary action so that the provisions of this Section 6.05. The obligations successors or assigns of Parent and the Surviving Company under this Section 6.05 Corporation shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect succeed to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for obligations set forth in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements5.6.
Appears in 1 contract
Samples: Merger Agreement (Reis, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement articles of incorporation and exculpation provisions bylaws of the Surviving Corporation shall contain the provisions regarding liability of directors and indemnification agreements of directors and officers that are set forth, as of the date of this Agreement, in the articles of incorporation and the bylaws, respectively, of Genco Holdings and shall provide indemnification with respect to claims arising from facts or events that occurred prior to the Public Company Merger Effective Time to the fullest extent permitted by and among in accordance with the Company TBCA and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and other applicable Law from time to time, 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 the rights thereunder of the current or former directors or officers of the Public Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Merger Effective Time in any manner that would affect adversely the rights thereunder of individuals who, who at or at any time prior to the Public Company Merger Effective Time, Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsEmployees.
(b) The Surviving Company shall, and Parent Corporation shall cause to be obtained at the Surviving Public Company to, maintain in effect for Merger Effective Time “tail” insurance policies with a claims period of at least six (6) years from the Public Company Merger Effective Time the current with respect to directors’ and officers’ liability insurance in amount and scope at least as favorable as the Genco Holdings’ existing policies maintained by the Company with respect to matters occurring for claims arising from facts or events that occurred prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Public Company Merger Effective Time; providedprovided that if such “tail” insurance policies are not available at a cost not greater than the amount set forth on Section 6.14 of the Companies Disclosure Letter (the “Insurance Cap”), that the Surviving Corporation shall cause to be obtained as much comparable insurance for as long a period (not to exceed six years from the Public Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(bMerger Effective Time) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage as is available for a cost not exceeding such amount. In addition, to exceed the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateInsurance Cap.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement charter and exculpation provisions bylaws of the indemnification agreements by and among Surviving Corporation shall contain the Company and its provisions regarding liability of directors and certain executive indemnification of directors and officers that are set forth, as of the date of this Agreement, in effect at the Effective Time shall survive charter and the Merger and bylaws, respectively, of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, who at or at any time prior to the Effective Time, Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and .
(b) For a period of three years after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, Corporation shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall use best efforts to cause the Surviving Company to, maintain to be maintained in effect for six (6) years from the Effective Time the current policies of directors’ ' and officers’ ' liability insurance with coverage in amount and scope at least as favorable as the Company's existing policies maintained by the Company with respect to matters occurring claims arising from facts or events that occurred prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event Corporation shall the Surviving Company not be required to expend pursuant to this Section 6.05(b) more than an pay any premium for directors' and officers' liability insurance that would exceed the amount per year equal to 300% of current annual premiums being paid by the Company for such insurance, and if as of the cost of such insurance policy exceeds such amount, then date hereof. If the Surviving Company shall obtain a policy with Corporation cannot maintain such policies as provided in the greatest coverage preceding sentences, the Surviving Corporation will cause to be maintained in effect tail policies of directors' and officers' liability insurance for a cost not exceeding such amount. In addition, the Company may and, period of at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to least three years from the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject This Section 6.06 is intended to be for the terms benefit of, and conditions of this Section 6.05shall be enforceable by, from 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 Company Corporation agrees that it shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless each present director and officer of the Company, determined as of the Effective Time (including any obligations to advance funds for expenses): (i) the "Indemnified Parties Parties"), from and against any and all costs or expenses (including reasonable attorneys’ fees and expenses)costs, judgments, fines, losses, obligations, claims, damages, liabilities liabilities, or expenses (including interest, penalties, reasonable out-of-pocket expenses and amounts paid reasonable attorneys' fees incurred in settlement the investigation or defense of any of the same or in asserting any of their rights hereunder) (collectively, "Costs") incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a directorresulting from, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision matters existing or any other indemnification occurring at or advancement right of any Indemnified Party) 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 provided that the Company would have been permitted or required under Colorado laws and under the Company’s or such Subsidiaries’ respective organizational and governing 's charter documents or agreements (as in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) to indemnify such Indemnified Parties (and the Surviving Corporation shall advance expenses as incurred to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time 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 Colorado 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, upon learning of any such claim, action, 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 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 Effective Time), (i) the 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 all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that the Surviving Corporation shall be obligated pursuant to this paragraph (e) 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 persons against matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without the prior written consent of Parent; and all Damages arising out provided further that the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party when and if a court of acts 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 omissions in such persons’ official capacity litigation, except with the consent of the Indemnified Party (which consent shall not be unreasonably withheld 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 officer, director unconditional term thereof the giving by the claimant or other fiduciary in plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation.
(f) If the Company Surviving Corporation or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective 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 Company 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 or the Surviving Company, as the case may be, or at Parent’s option, Parent, Corporation shall expressly assume all of the obligations set forth in this Section 6.056.06.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (American Educational Products Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and or advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not to be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time Time, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time); provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable to the Indemnified Parties than those provided under the Company’s current policies; , and provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions terms and limits of liability conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties present and former officers and directors thereof against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, actionAction, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating to or in connection with (Ai) the fact that an Indemnified Party such person is or was a director, director or officer or employee of the Company or any of its Subsidiaries such Subsidiary or (Bii) any acts or omissions occurring or alleged to have occurred prior to or at the Effective Time (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions Actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time), to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, including the approval of this Agreement, the Transactions or arising out of or pertaining to the Transactions and Actions to enforce this provision or any other indemnification or advancement right or any such person, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFor a period of six (6) years from and after the Effective Time, advancement the Surviving Corporation shall indemnify and exculpation provisions hold harmless all past and present officers and directors of the indemnification agreements by and among the Company and its Subsidiaries to the same extent and in the same manner such persons are indemnified as of the date of this Agreement by the Company and such Subsidiaries pursuant to any indemnification agreements between the Company or such Subsidiaries and its or their directors and certain executive officers as of the date hereof, the DGCL, the Company’s or its Subsidiaries’ Certificates of Incorporation and/or Bylaws for acts or omissions occurring at or prior to the Effective Time. The Certificate of Incorporation and the Bylaws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification that are at least as favorable to the indemnified parties as those contained in the Company’s and its Subsidiaries Certificates of Incorporation and Bylaws as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the current Effective Time, were directors, officers, employees or former directors or officers agents of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause unless such provisions not be amended, repealed or otherwise modified for a modification is required by Law.
(b) For a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, Corporation to maintain in effect (or Parent may instead elect to maintain pursuant to Parent’s policy or policies) for six (6) years from the Effective Time benefit of the Company’s and its Subsidiaries’ current directors’ directors and officers’ liability officers an insurance policies maintained by the Company with respect to matters and indemnification policy that provides coverage for acts or omissions occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement Time that is substantially equivalent to the Company’s and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) its Subsidiaries’ existing policy on terms with respect to coverage and amount no less favorable to in the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are aggregate no less favorable than those provided under of such policy in effect on the Company’s current policiesdate hereof, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, furtherhowever, that in no event shall the Surviving Company Corporation shall not be required to expend pursuant to this Section 6.05(b) more than pay an amount per year equal to 300annual premium for such insurance in excess of 150% of current the last annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by date hereof (which premiums the Company prior has disclosed to the Effective TimeParent), the Surviving Company shall, and Parent but in such case shall cause the Surviving Company to, maintain purchase as much coverage as possible for such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateamount.
(c) Subject This Section 7.5 shall survive the consummation of the Merger, is intended to benefit the terms and conditions of this Section 6.05Company, from and after the Effective Timeits Subsidiaries, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, Corporation and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses)indemnified party, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and binding on all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Corporation and Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under enforceable by the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwiseindemnified parties. The provisions of this Section 6.05 shall survive the consummation of the Merger and 7.5 are intended to be for the benefit of, and shall will be enforceable by, each of the Indemnified Parties indemnified party, his or her heirs, and their heirs his or her representatives and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified are in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended addition to, shall be construed to or shall releaseand not in substitution for, waive or impair any other rights to directors’ and officers’ insurance claims under any policy indemnification or other agreement contribution that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies Person may have by contract or other agreementsotherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(bSection 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year six-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(bSection 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (comply, and Parent shall cause the Surviving Company Corporation to comply) , with all of the Company’s obligations, and each of the Surviving Company Corporation and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in of the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding which may result in the payment or advancement of any amounts under Section 6.05(c), the organizational and governing documents of the Company or any of its Subsidiaries, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Corporation promptly, but in all events no later than the earlier of (i) five days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Corporation or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Corporation (or a Subsidiary nominated by it) shall have the right to participate in any such Proceeding and, at its option, assume the defense of such Proceeding. The person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Proceeding, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Proceeding. In the event the Surviving Corporation (or a Subsidiary nominated by it) assumes the defense of any Proceeding pursuant to this Section 6.05(d), neither the Surviving Corporation nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Proceeding.
(e) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section Section 6.05.
(ef) The agreements and covenants contained in this Section Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Third-Party beneficiary of the provisions of this Section Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, ; it being understood and agreed that the indemnification provided for in this Section Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (Shanda Games LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Parent and Merger Sub agree that all rights to indemnification and exculpation provisions from liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the indemnification agreements by and among current or former directors or officers of the Company (the “D&O Indemnified Parties”) as provided in the Certificate of Incorporation, the Bylaws or any indemnification Contract between such directors or officers and its directors and certain executive officers the Company (in each case, as in effect at on, and, in the Effective Time case of any indemnification Contracts, to the extent made available to Parent prior to, the date of this Agreement) shall survive the Merger and shall not be amended, repealed or otherwise modified for continue in full force and effect. For a period of six (6) years from the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification and advancement of expenses equivalent to the provisions of the Certificate of Incorporation and Bylaws as in effect immediately prior to the Effective Time solely with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of the current any D&O Indemnified Parties; provided, however, that all rights to indemnification in respect of any action pending or former directors or officers of the Company asserted or any claim made for indemnification within such period shall continue until the disposition of its Subsidiaries. The memorandum and articles such action or resolution of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Lawclaim. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses Parent shall be assumed by guarantee and stand surety for, and shall cause the Surviving CompanyCorporation to honor, shall survive the Merger and shall continue in full force and effect in accordance with its their respective terms, each of the covenants contained in this Section 5.6.
(b) The Surviving Prior to the Effective Time, the Company shallshall or, and if the Company is unable to, Parent shall cause the Surviving Company to, maintain in effect for six (6) years from Corporation as of or after the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company to, purchase a six (6)-year prepaid “tail” policy, with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those the coverage provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% existing policies of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance and fiduciary liability insurance, with respect to matters arising on or before the Effective Time (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Company. If such “tail” prepaid policies Surviving Corporation, and no other party shall have been obtained any further obligation to purchase or pay for insurance hereunder; provided, however, that the Company shall not pay, and the Surviving Corporation shall not be required to pay, in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of such “tail” policy. If the Company or the Surviving Corporation for any reason fail to obtain such “tail” insurance policies prior to, as of or after the Effective Time, the Surviving Company Parent shall, and Parent shall for a period of six (6) years from the Effective Time, cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company towith respect to matters arising on or before the Effective Time; provided, maintain further, however, that after the Effective Time, Parent shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of the coverage required to be obtained pursuant hereto, but in such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) case shall terminatepurchase as much coverage as reasonably practicable for such amount.
(c) Subject to the terms and conditions of The covenants contained in this Section 6.05, from and after 5.6 are intended to be for the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligationsbenefit of, and shall be enforceable by, each of the Surviving Company D&O Indemnified Parties and Parent shall cause its Subsidiaries to comply with their respective obligations heirs and shall not be deemed exclusive of any other rights to indemnify and hold harmless (including which any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigationsuch Person is entitled, whether civilpursuant to Law, criminal, administrative contract or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesotherwise.
(d) In the event the Company that Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.055.6.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationTo the fullest extent permitted by Law, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association and bylaws, as applicable, of NewCo, the Surviving Corporation and the Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and indemnification, exculpation, advancement of expenses or expense reimbursement than are set forth in (i) the memorandum and articles of association of the Company as in effect on and (ii) the date hereofcertificate of incorporation and bylaws of FRSG, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyCompany or FRSG, as applicable, unless such modification shall be required by applicable Law. From and after The Parties further agree that with respect to the Effective Timeprovisions of the articles of association, any agreement bylaws, limited liability company agreements, or other organizational documents of any Indemnified Party with the Company Subsidiaries relating to indemnification, exculpation, advancement or any expense reimbursement, such provisions shall not be amended, repealed or otherwise modified for a period of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time in any manner that would affect adversely the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring rights thereunder of individuals who, at or prior to the Effective Time, including acts were directors, officers, employees, fiduciaries or omissions occurring in connection with this Agreement and the consummation agents of the Transactions (the parties covered therebysuch Company Subsidiary, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event unless such modification shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% by applicable Law. For a period of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to 6) years from the Effective Time, the Surviving Company shall, and Parent NewCo agrees that it shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) each present and former director and officer of the Indemnified Parties Company or FRSG, as applicable, against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, damages or liabilities and amounts paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision matters existing or any other indemnification occurring at or advancement right of any Indemnified Party) prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent provided that the Company or FRSG, as applicable, would have been permitted under applicable Law, the Company’s articles of association, certificate of organization, or such Subsidiaries’ respective organizational and governing documents the bylaws of the Company or agreements FRSG, as applicable, in effect on the date hereof of this Agreement to indemnify such person (true including the advancing of expenses as incurred to the fullest extent permitted under applicable Law).
(b) For a period of six (6) years from the Effective Time, NewCo shall maintain in effect directors’ and officers’ liability insurance (“D&O Insurance”) covering (i) those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy (true, correct and complete copies of which shall have been delivered heretofore made available to Parent prior to FRSG or its agents or Representatives) on terms not less favorable than the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that terms of such indemnification shall be subject to any limitation imposed from time to time under applicable Law; current insurance coverage and (ii) those persons who are currently covered by FRSG’s directors’ and officers’ liability insurance policy on terms not less favorable than the terms of such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officercurrent insurance coverage. Prior to the Effective Time, director or other fiduciary in the Company may purchase a prepaid “tail” policy with respect to the Company’s D&O Insurance from an insurance carrier with the same or any better credit rating as the Company’s current directors’ and officers’ liability insurance carrier so long as the aggregate cost for such “tail” policy does not exceed 300% of its Subsidiaries if such service was at the request or aggregate annual premium payable by the Company for the benefit D&O Insurance for the year ended December 31, 2021 (on a pro-rated basis), unless the Company obtains FRSG’s written consent to spend more than 300% on such “tail” policy (such consent not to be unreasonably withheld). If the Company elects to purchase such a “tail” policy prior to the Effective Time, NewCo will maintain such “tail” policy in full force and effect for a period of no less than six (6) years after the Effective Time and continue to honor its obligations thereunder.
(c) Prior to the Effective Time, FRSG may purchase a prepaid “tail” policy with respect to FRSG’s D&O Insurance from an insurance carrier with the same or better credit rating as FRSG’s current directors’ and officers’ liability insurance carrier so long as the aggregate cost for such “tail” policy does not exceed 300% of the Company or any aggregate annual premium payable by FRSG for FRSG’s D&O Insurance for the year ended December 31, 2021 (on a pro-rated basis), unless FRSG obtains the Company’s written consent to spend more than 300% on such “tail” policy (such consent not to be unreasonably withheld). If FRSG elects to purchase such a “tail” policy prior to the Effective Time, NewCo will maintain such “tail” policy in full force and effect for a period of no less than six (6) years after the Effective Time and continue to honor its Subsidiariesobligations thereunder.
(d) In Prior to or in connection with the event Closing, NewCo shall obtain “go-forward” D&O Insurance to cover the post-Closing directors and officers of NewCo, the Company, the Surviving Corporation, and the Company or Subsidiaries. NewCo shall use commercial efforts to ensure that such “go-forward” D&O Insurance is reasonably satisfactory to FRSG. From and after the Surviving Company or any date of their respective successors or assigns (i) consolidates this Agreement, NewCo, the Company, and FRSG shall cooperate in good faith with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets respect to any person, then, and in each such case, proper provision shall be made so that efforts to obtain the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth insurance described in this Section 6.057.05, including but not limited to providing access to insurance broker presentations, underwriter quotes for such insurance, and draft policies for such insurance, and NewCo, the Company, and FRSG shall make available their Representatives as needed for any underwriting call.
(e) The agreements and covenants contained With respect to any claims that may be made under any D&O Insurance discussed in this Section 6.05 shall be in addition 7.05, (i) prior to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents)Effective Time, or any agreement between an Indemnified Party FRSG, NewCo, and the Company or shall cooperate with any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit ofparty as reasonably requested by such other party, and shall be enforceable by(ii) after the Effective Time, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent NewCo and the Surviving Company under this Section 6.05 shall not be terminated or modified in cooperate with any person insured by such a manner policies as to adversely affect the rights of any Indemnified Party without the consent of reasonably requested by such Indemnified Partyperson.
(f) Nothing in this Agreement is intended toOn the Closing Date, NewCo shall be construed enter into customary indemnification agreements reasonably satisfactory to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to each of the Company or any of its Subsidiaries or their respective officers, and FRSG with the post-Closing directors and employeesofficers of NewCo, it being understood and agreed that which indemnification agreements shall continue to be effective following the Closing. For the avoidance of doubt, the indemnification provided for agreements with the pre-Closing directors and officers of FRSG in this effect as of the date hereof shall continue to be effective following the Closing, and NewCo shall cause the Surviving Corporation to continue to honor its obligations thereunder.
(g) NewCo agrees to comply with the provisions of Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements7.05(g) of the Company Disclosure Schedules.
Appears in 1 contract
Samples: Business Combination Agreement (First Reserve Sustainable Growth Corp.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFor a period of six (6) years from and after the Effective Time, advancement the Surviving Corporation shall indemnify, advance expenses to, and exculpation provisions hold harmless all past and present officers and directors of the Company (“Indemnified Persons”) to the same extent and in the same manner such persons are indemnified as of the date of this Agreement by the Company pursuant to any indemnification agreements by and among between the Company and its directors and certain executive officers as of the date hereof, the DGCL, the Company Certificate of Incorporation and the Company Bylaws for acts or omissions occurring at or prior to the Effective Time; provided, however, in the case of advancement of expenses, any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL, to repay such advance if it is ultimately determined that such person is not entitled to indemnification. Parent guarantees the indemnification, insurance, advancement and other obligations of the Surviving Corporation set forth in this Section 5.10. The Certificate of Incorporation and the Bylaws of the Surviving Corporation will contain provisions with respect to exculpation, advancement and indemnification that are at least as favorable to the Indemnified Persons as those contained in the Company Certificate of Incorporation and the Company Bylaws as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the current Effective Time, were directors, officers, employees or former directors or officers agents of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereofCompany, and Parent shall cause unless such provisions not be amended, repealed or otherwise modified for a modification is required by Law.
(b) For a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall use its reasonable best efforts to cause the Surviving Company to, Corporation to maintain in effect for six (6or Parent may instead elect to maintain pursuant to Parent’s policy or policies) years from the Effective Time the current policies of directors’ and officers’ liability insurance policies and fiduciary liability insurance maintained by the Company (the “D&O Insurance”) with respect to matters occurring prior to the Effective Time, including acts arising on or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of before the Effective Time; provided, however, that after the Effective Time, the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event Corporation shall the Surviving Company not be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to pay annual premiums in excess of 300% of current the last annual premiums premium paid by the Company prior to the date of this Agreement in respect of the coverages required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior Subsequent to the Effective Time, the Surviving Company shallCorporation may purchase a six-year “tail” fully prepaid policy on the D&O Insurance on terms and conditions no less advantageous than the D&O Insurance, and in such case, Parent shall cause the Surviving Company toCorporation to maintain in effect such “tail” policy in full force and effect and continue to honor its obligations thereunder, maintain in lieu of all other obligations of Parent under the first sentence of this Section 5.10(b) for so long as such policies “tail” policy shall be maintained in full force and effect, and continue . Prior to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect notwithstanding anything to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations contrary set forth in this Section 6.05.
Agreement, the Company may purchase a six-year “tail” fully prepaid policy on the D&O Insurance from its current D&O Insurance provider or, subject to Parent’s consent (esuch consent not to be unreasonably withheld, delayed or conditioned) The agreements and covenants contained in this Section 6.05 shall be in addition to from any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Partyinsurance provider.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Intraware Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors Subsidiaries, on the one hand, and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the its current or former directors and officers or officers any person who becomes a director or officer of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable Subsidiaries prior to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth Effective Time, in the memorandum and articles of association of the Company each case as in effect on at the date hereofEffective Time, shall survive the Merger and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals whoeach individual who at the Effective Time is, or at or any time prior to the Effective TimeTime was, were directors, officers, employees, fiduciaries a director or agents officer of the CompanyCompany or any Subsidiaries (the “Indemnified Parties”). The Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) honor and fulfill in all respects the obligations of the Company and its Subsidiaries under (a) any indemnification, unless such modification shall be required by Law. From advancement of expenses and after the Effective Time, exculpation provision set forth in any agreement memorandum and articles of any Indemnified Party with association or comparable organizational documents of the Company or any of its Subsidiaries regarding exculpation or indemnification as in effect on the date of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger this Agreement and shall continue in full force and effect in accordance with its terms.
(b) The all indemnification agreements between the Company or any of its Subsidiaries and any of their respective current or former directors and officers and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time, subject to any limitation imposed from time to time by applicable Law. In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Company shall, Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) cause the memorandum and articles of association (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, advancement of expenses and indemnification that are at least as favorable to the directors, officers or employees of the Company to, maintain as those contained in the memorandum and articles of association of the Company as in effect on the date hereof, except to the extent prohibited by the Cayman Companies Law or any other applicable Law, which provisions will not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation rights thereunder of the Transactions (the parties covered thereby, the “Indemnified Parties”, unless such modification is required by Law.
(b) on terms with respect to coverage From and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to after the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations obligations, to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries such Subsidiary or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) occur prior to or at the Effective Time, Time to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL Cayman Companies Law or any other applicable Law; provided, that Law in connection with such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity Indemnified Party serving as an officer, director or other fiduciary in the Company or any of its Subsidiaries entity if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(dc) Prior to the Effective Time, the Company may at its option purchase a six (6) year “tail” prepaid policy on the D&O Insurance prior to the Effective Time with annual premiums in an amount not in excess of 300% of the current annual premium paid by the Company for such insurance (the “Maximum Annual Premium”). If such “tail” prepaid policies have been obtained by the Company prior to the Closing, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder for so long as such “tail” policy shall be maintained in full force and effect and all other obligations under this Section 7.05(c) shall terminate. In the event that the Company or does not elect to purchase such a “tail” policy prior to the Effective Time, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, thenCorporation shall, and in each such case, proper provision Parent shall be made so that the successors and assigns of the Company or cause the Surviving Corporation to, maintain the Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to ’ existing directors’ and officers’ liability insurance claims under any policy (including for acts or other agreement that is or has been omissions occurring in existence connection with this Agreement and the consummation of the Transactions) (“D&O Insurance”) covering each Person covered by the existing Company’s officers’ and directors’ liability insurance policy, on terms with respect to coverage and amount that are equivalent to those of such policy in effect on the Company or date hereof for a period of six (6) years after the Effective Time; provided, however, that, subject to the immediately succeeding sentence, in no event shall the Surviving Corporation be required to pay in any one (1) year an amount in excess of its Subsidiaries or their respective officersthe Maximum Annual Premium; provided that, directors if the annual premiums of such insurance coverage exceed the Maximum Annual Premium, Parent and employees, it being understood and agreed that the indemnification provided Surviving Corporation shall be obligated to obtain a substantially similar policy with the greatest coverage available for in this Section 6.05 is a cost not prior to or in substitution for any such claims under any such policies or other agreementsexceeding the Maximum Annual Premium.
Appears in 1 contract
Samples: Merger Agreement (SKY-MOBI LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFor a period of six years after the Effective Time, advancement each of Parent, U.S. Parent and exculpation provisions the Surviving Corporation shall, jointly and severally, indemnify and hold harmless all past and present officers and directors of the indemnification agreements Company for acts or omissions occurring at or prior to the Effective Time, including acts or omissions occurring in connection with the transactions contemplated herein, to the fullest extent (x) permitted by and among the DGCL; (y) provided under the Company Certificate of Incorporation and its directors the Company Bylaws in effect on the date hereof (and certain executive officers shall also advance expenses as incurred in defense of any action, suit or proceeding to the fullest extent permitted under the DGCL; provided, that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification); or (z) provided pursuant to each indemnification agreement in existence as of the date hereof; provided, that such indemnification under (x) and (y) shall be subject to any limitation imposed from time to time under the DGCL. Parent shall cause the certificate of incorporation and the bylaws of the Surviving Corporation to contain provisions with respect to exculpation, indemnification and advancement of expenses that are at least as favorable to the indemnified parties as those contained in the Company Certificate of Incorporation and the Company Bylaws as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or immediately prior to the Effective Time, were directors, officers, employees, fiduciaries employees or agents of the Company, unless except to the extent such a modification shall be is required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsDGCL.
(b) The Surviving Company shallFor a period of six years from the Effective Time, Parent and U.S. Parent shall cause the Surviving Company to, Corporation to maintain in effect (or Parent may instead elect to maintain pursuant to Parent’s policy or policies) for six (6) years from the Effective Time benefit of the Company’s current directors’ directors and officers’ liability officers an insurance policies maintained by the Company with respect to matters and indemnification policy that provides coverage for acts or omissions occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and Time that is substantially equivalent to the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) Company’s existing policy on terms with respect to coverage and amount no less favorable to in the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are aggregate no less favorable than those provided under of such policy in effect on the Company’s current policiesdate hereof, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of 300% of the last annual premiums paid prior to the date hereof (which premiums the Company has disclosed to Parent), and provided, further, that in no event shall that, if the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company premium for such insurance, and if the cost of such insurance policy coverage exceeds such amount, then Parent or the Surviving Company Corporation shall obtain purchase a policy with the greatest coverage available for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateannual premium.
(c) Subject This Section 5.10 shall survive the consummation of the Merger, is intended to benefit the terms Company, the Surviving Corporation and conditions each indemnified party, shall be binding on all successors and assigns of the Surviving Corporation, U.S. Parent and Parent, and shall be enforceable by the indemnified parties. The provisions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company 5.10 are intended to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company of, and will be enforceable by, each indemnified party, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any of its Subsidiariesother rights to indemnification or contribution that any such Person may have by law, charter, statute, bylaw, contract or otherwise.
(d) Parent shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by the persons referred to in this Section 5.10 in connection with their enforcement of their rights provided in this Section 5.10.
(e) In the event the Company Parent, U.S. Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger merger, or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall expressly assume and succeed to the obligations set forth in this Section 6.055.10.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and exculpation, advancement of expenses and indemnification than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent and the Surviving Company shall cause such provisions not to be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time Time, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time); provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no less favorable than those provided under the Company’s current policies; favorable, and provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions terms and limits of liability conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from From and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties present and former officers and directors thereof against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party such Person is or was a director, officer or employee of the Company or any of its Subsidiaries such Subsidiary, or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, including the approval of this Agreement, the Plan of Merger, the Transactions, or the other Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any such Person, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons Persons against any and all Damages arising out of acts or omissions in such personsPersons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving 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 or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Parent and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner Acquisition Sub agree that would adversely affect the all rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed for acts 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, omissions occurring at or prior to the Effective Time, were directorswhether asserted or claimed prior to, officers, employees, fiduciaries at or agents of the Company, unless such modification shall be required by Law. From and after the Effective TimeTime (including any matters arising in connection with the transactions contemplated by this Agreement), any agreement now existing in favor of any Indemnified Party with Indemnitee as provided in the Certificate of Incorporation or the By-laws (or comparable organization documents) of the Company or any of its Subsidiaries regarding exculpation subsidiaries or indemnification in any agreement of liability the Company or advancement any of expenses shall be assumed by the Surviving Company, its subsidiaries shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement such Indemnitee. Parent and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event Corporation shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to complyall acts or omissions by them, in their capacities as such at any time prior to the Effective Time, to the fullest extent permitted by applicable Law and (ii) with all not amend, repeal or otherwise modify any provisions of the Company’s obligations, and each Certificate of Incorporation or By-laws (or comparable organizational documents) of the Company or any of its subsidiaries as in effect on the date of this Agreement and any indemnification agreement of the Company or its subsidiaries as in effect on the date of this Agreement that has been made available to Parent, in any manner that would adversely affect the rights thereunder of any Indemnitees.
(b) Without limiting the provisions of Section 6.5(a), during the period commencing as of the Effective Time and ending on the sixth anniversary of the Effective Time, Parent and the Surviving Company Corporation and Parent shall cause its Subsidiaries subsidiaries will, to comply with their respective obligations to indemnify the fullest extent permitted by applicable Law: (i) indemnify, defend and hold harmless (including each Indemnitee against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising to the extent such claim, action, suit, proceeding or investigation arises out of, relating to of or in connection with pertains to: (A) the fact that an Indemnified Party is any action or was omission or alleged action or omission by such Indemnitee in its capacity as a director, director or officer or employee of the Company or any of its Subsidiaries subsidiaries or Affiliates occurring at or prior to the Effective Time; or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of Offer, the Merger, this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Lawtransactions contemplated hereby; and (ii) pay in advance of the final disposition of any such persons against 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 if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the contrary contained in this Section 6.5(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 6.5(b) unless such settlement, compromise, consent or termination includes an unconditional release of all Damages Indemnitees from all liability arising out of acts such claim, action, suit, proceeding or omissions investigation.
(c) Prior to the Effective Time, 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-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"), 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 of the date hereof; provided, that the premium for such "tail" insurance shall not exceed 275% of the annual premium currently paid by the Company. If the Company or the Surviving Corporation for any reason fail to obtain such "tail" insurance policies as of the Effective Time, (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 with respect to D&O Insurance 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 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 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 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; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for such persons’ official capacity insurance in excess of 275% of the annual premium currently paid by the Company for the D&O 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, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount; provided, further that Parent may from time to time substitute therefor policies of an insurance company with the same or better credit rating as an officerthe Company's current insurance company containing terms (including with respect to coverage and amounts) and conditions (including with respect to deductibles and exclusions) that are no less favorable to any Indemnitee than the coverage provided under the Company's existing policies as of the date hereof.
(d) The Indemnitees to whom this Section 6.5 applies shall be third party beneficiaries of this Section 6.5. The provisions of this Section 6.5 are intended to be for the benefit of each Indemnitee and his or her successors, director heirs or representatives. Parent shall pay all reasonable expenses, including reasonable attorneys' fees, that may be incurred by any Indemnitee in enforcing the indemnity and other fiduciary obligations provided in this Section 6.5.
(e) The rights of each Indemnitee under this Section 6.5 shall be in addition to any rights such person may have under the Certificate of Incorporation or Bylaws of the Company, the Surviving Corporation or any of its subsidiaries, or under any applicable Law or insurance policy or under any agreement of any Indemnitee with the Company or any of its Subsidiaries if such service was at subsidiaries.
(f) Notwithstanding anything contained in this Section 6.5 or Section 9.6 hereof to the request or for contrary, this Section 6.5 shall survive the benefit consummation of the Company 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 Surviving Corporation or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parentapplicable, shall assume succeed to the obligations set forth in this Section 6.056.5.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationSurviving Corporation and Parent shall (i) indemnify and hold harmless all past and present directors, advancement officers and exculpation provisions employees (in all of the indemnification agreements by and among their capacities) of the Company and its directors Subsidiaries to the same extent such persons are indemnified as of the date hereof by the Company consistent with applicable Law and certain executive officers pursuant to the Company's certificate of incorporation and bylaws as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect existence on the date hereofhereof arising out of, and Parent shall cause such provisions not be amended, repealed relating to 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 connection with acts or omissions occurring or alleged to have occurred prior to the Effective Time, were directors, officers, employees, fiduciaries Time (including for acts or agents omissions occurring in connection with the approval of this Agreement and the consummation of the CompanyTransactions), unless so long as such modification shall person gives the Surviving Corporation the opportunity to defend any such Action and does not effect any settlement without the Surviving Corporation's prior written consent, and (ii) include and cause to be required by Law. From maintained in effect in the Surviving Corporation's (or any successor's) certificate of incorporation and bylaws after the Effective Time, any agreement provisions regarding the elimination of liability of directors and the indemnification of the indemnified parties that are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of incorporation and bylaws of the Company. Without duplication of any Indemnified Party with payments made under the foregoing provisions of this Section 5.02, Parent agrees that the Surviving Corporation's and Parent's obligations pursuant to this Section 5.02 shall be in addition to, and not in lieu of, the existing indemnification agreements between the Company or any and its officers and directors, copies of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by which have been provided to Parent prior to the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsdate hereof.
(b) The Surviving Company shall, Corporation and Parent shall cause the Surviving Company to, maintain to be maintained in effect for six (6) years from the Effective Time the current directors’ ' and officers’ ' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies with a reputable insurer of comparable credit quality of at least the same coverage containing terms and conditions that are no less advantageous in the aggregate to such persons) with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, furtherhowever, that in no event shall the Surviving Company Corporation or Parent be required to expend pursuant to this Section 6.05(b5.02(b) more than an amount per year equal to 300250% of current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be $236,656 in the aggregate, and if the cost of annual premium would exceed such insurance policy exceeds such maximum amount, then the Surviving Company Corporation or Parent shall obtain a policy with the greatest coverage reasonably available for a cost not exceeding such the maximum amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate).
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns Corporation (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any personperson and the Earn Out Recipients have not exercised their rights pursuant to Section 7.06(c), then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving CompanyCorporation, as the case may be, or at Parent’s 's option, Parent, shall assume the obligations set forth in this Section 6.055.02.
(ed) The agreements Surviving Corporation or Parent shall pay all reasonable costs and covenants contained expenses, including reasonable attorneys' fees, that may be incurred by any person in successfully enforcing the indemnity and other obligations set forth in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party5.02.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) For a period of six (6) years from and after the Effective Time, the Surviving Corporation shall indemnify, advance expenses to, and hold harmless all past and present officers and directors of the Company (“Indemnified Persons”) to the same extent and in the same manner such persons are indemnified as of the date of this Agreement by the Company pursuant to the DGCL, the Company Certificate of Incorporation and the Company Bylaws for acts or omissions occurring at or prior to the Effective Time; provided, however, in the case of advancement of expenses, any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL, to repay such advance if it is ultimately determined that such person is not entitled to indemnification. The indemnificationCertificate of Incorporation and the Bylaws of the Surviving Corporation will contain provisions with respect to exculpation, advancement and exculpation provisions of indemnification that are at least as favorable to the indemnification agreements by and among Indemnified Persons as those contained in the Company Certificate of Incorporation and its directors and certain executive officers the Company Bylaws as in effect at on the Effective Time shall survive the Merger and shall date hereof, which provisions will not be amended, repealed or otherwise modified for a period of not less than six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or immediately prior to the Effective Time, were directors, officers, employees, fiduciaries employees or agents of the Company, unless such a modification shall be is required by Law. From .
(b) The Company shall, prior to the Effective Time, and if the Company fails to do so, Parent shall cause the Surviving Corporation 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 Effective Time for events occurring prior to the 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. If the Company or the Surviving Corporation for any reason fail to obtain such “tail” insurance policy as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect from the Effective Time until the sixth (6th) anniversary of the Effective time (and for so long thereafter as any agreement claims brought before the end of such six-year period thereunder are being adjudicated), for the benefit of the Indemnified Persons with respect to their acts and omissions as directors, officers, employees or agents of the Company occurring prior to the Effective Time, the existing D&O Insurance maintained by the Company as of the date of this Agreement in the form delivered by the Company to Parent prior to the date of this Agreement, with terms, conditions, retentions and limits of liability that are not less favorable in the aggregate to the intended beneficiaries thereof than as provided in the Company’s existing policies as of the date hereof (the “Existing D&O Policy”); provided, however, that: (i) Parent and the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage for such six-year period (and for so long thereafter as any Indemnified Party claims brought before the end of such six-year period thereunder are being adjudicated), including a “tail” insurance policy; and (ii) the Surviving Corporation shall not be required to pay annual premiums for the D&O Insurance (or for any applicable substitute or “tail” policies) in excess of $187,760 (the “Maximum Premium”). In the event any future annual premiums for the D&O Insurance (or any applicable substitute policies) exceed the Maximum Premium, the Surviving Corporation shall be entitled to reduce the amount of coverage of the D&O Insurance (or any applicable substitute or “tail” policies) to the greatest available coverage that can be obtained for a premium equal to the Maximum Premium.
(c) The contractual indemnification rights, if any, in existence on the date of this Agreement with any of the directors, officers or employees of the Company or any Company Subsidiary shall, by virtue of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall the Merger and at the Effective Time, be assumed by the Surviving CompanyCorporation, shall survive the Merger without any further action, and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to their terms following the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 6.7 are intended to be for the benefit ofin addition to, and shall be enforceable bynot in substitution for, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05any other rights to indemnification or contribution that any such person may have by contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement Agreement, including this Section 6.7, is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or Company, any of its the Company Subsidiaries or their respective officers, directors and employeesthe Indemnified Parties, it being understood and agreed that the indemnification provided for in this Section 6.05 6.7 is not prior to to, or in substitution for for, any such claims under any such policies policies. The provisions of this Section 6.7 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, and each Indemnified Person’s heirs, executors or other agreementsadministrators, shall be binding on all successors and assigns of the Company and the Surviving Corporation and shall not be amended in a manner that is adverse to any Indemnified Persons (including their successors, assigns and heirs) without the consent of the Indemnified Person (including the successors, assigns and heirs) affected thereby.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement During the period commencing at the Effective Time and exculpation provisions ending on the sixth (6th) anniversary of the indemnification agreements Effective Time, to the fullest extent permitted by applicable Law, the Surviving Corporation and among its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) honor and fulfill the obligations of the Company and its directors Subsidiaries under (i) any indemnification, advancement of expenses and certain executive officers exculpation provision set forth in any memorandum and articles of association or comparable organizational documents of the Company or any of its Subsidiaries as in effect at on the date of this Agreement (the “Organizational Documents”) and (ii) all indemnification agreements (the “Indemnification Agreements”) in effect as of the date of this Agreement (all of which are deemed Material Contracts) between the Company or any of its Subsidiaries and any of their respective current or former directors and officers and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time shall survive (the Merger and “Indemnified Parties”). During such six (6) year period, such Indemnification Agreements 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 the rights thereunder of the current or former directors or officers Indemnified Parties thereunder except as permitted by the terms thereof. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Company or any of Effective Time, and except as prohibited by applicable Law, the Surviving Corporation and its Subsidiaries. The Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) cause the memorandum and articles of association (and other similar organizational documents) of the Surviving Company shall Corporation and its Subsidiaries to contain provisions no less with respect to exculpation, advancement of expenses and indemnification that are at least as favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth Indemnified Parties as those contained in the memorandum and articles of association (or other similar organizational documents) of the Company and its Subsidiaries as in effect on the date hereof, and Parent shall cause during such six (6) year period, such provisions shall not be amended, repealed repealed, or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be Indemnified Parties thereunder except as required by applicable Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The From the Effective Time until the sixth (6th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the each Indemnified Parties Party from and against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating to or in connection with (Ai) the fact that an Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries, (ii) any acts or omissions occurring or alleged to occur prior to or at the Effective Time in such Indemnified Party’s capacity as a director, officer officer, employee or employee agent of the Company or any of its Subsidiaries or other Affiliates, or (Biii) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of Merger, this Agreement or any of the Transactions Transactions; provided that the foregoing indemnification requirements will be subject to any carve-outs currently provided for in the Organizational Documents or arising out of or pertaining the Indemnification Agreements); provided further, however, that if, at any time prior to the Transactions and actions to enforce this provision or any other indemnification or advancement right sixth (6th) anniversary of the Effective Time, any Indemnified PartyParty delivers to the Surviving Corporation or Parent a written notice asserting a claim for indemnification under this Section 7.05(b), then the claim asserted in such notice shall survive the sixth (6th) prior to or anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Party therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Party in connection with any such claim, proceeding, investigation or inquiry; provided, however, that if, at any time prior to the sixth (6th) anniversary of the Effective Time, any Indemnified Party delivers to the Surviving Corporation or Parent a written notice asserting a claim for advancement under this Section 7.05(b), then the right to advancement asserted in such indemnification notice shall survive the sixth (6th) anniversary of the Effective Time until such time as such claim is fully and finally resolved.
(c) Prior to the Effective Time, notwithstanding anything to the contrary set forth in this Agreement, the Company may purchase a six (6) year “tail” prepaid policy on the D&O Insurance on terms with respect to coverage and amounts that are no less favorable to the Indemnified Parties than those of the D&O Insurance in effect as of the date hereof; provided, however, that the annual premium amount payable for such “tail” insurance policy shall not exceed three hundred percent (300%) of the premium amount per annum the Company paid in its last full fiscal year as set forth in Section 7.05(c) of the Company Disclosure Schedule (such three hundred percent (300%) amount, the “Maximum Tail Premium”); provided that, if the cost for such “tail” insurance policy exceeds the Maximum Tail Premium, then the Company or the Surviving Corporation shall be subject obligated to any limitation imposed from time obtain a substantially similar policy with the greatest coverage available for a cost not exceeding the Maximum Tail Premium. In the event that the Company elects to time under applicable Law; purchase such a “tail” policy prior to the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder. In the event that the Company does not elect to purchase such a “tail” policy prior to the Effective Time, during the period commencing at the Effective Time and ending on the sixth (ii6th) such persons against any anniversary of the Effective Time, the Surviving Corporation shall (and all Damages arising out Parent shall cause the Surviving Corporation to), maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”) in respect of acts or omissions in such persons’ official capacity as an officeroccurring at or prior to the Effective Time, director or other fiduciary in covering each person covered by the Company or any of its Subsidiaries if such service was at D&O Insurance, on terms with respect to the request or for coverage and amounts that are no less favorable to the benefit Indemnified Parties than those of the Company or any D&O Insurance in effect as of its Subsidiariesthe date hereof.
(d) In the event the Company Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its their respective 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.057.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 7.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party7.05.
(f) The agreements and covenants contained in this Section 7.05 shall not be deemed to be exclusive of any other rights to which any such 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Global-Tech Advanced Innovations Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement Parent and the Company agree that all rights to indemnification and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect from liabilities for acts or omissions occurring at or prior to the Effective Time shall survive the Merger (and shall not be amended, repealed or otherwise modified rights for a period advancement of six years from the Effective Time expenses) now existing in any manner that would adversely affect the rights thereunder favor of the current or former directors or officers of the Company and its Subsidiaries (the “Indemnified Parties”) as provided in their respective Organizational Documents and any indemnification or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association other agreements of the Company and its Subsidiaries as in effect on the date of this Agreement (an “Indemnification Agreement”) shall be assumed by the Surviving Entity in the Merger, without further action, at the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms for a period of six (6) years from the Effective Time, and any claim made pursuant to such rights within such six (6) year period shall continue to be subject to this Section 6.08(a) and the rights provided under this Section 6.08(a) until disposition of such claim. Further, the provisions in the Surviving Entity’s Organizational Documents with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Organizational Documents in effect as of the date hereof, and Parent which provisions shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from after the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless any such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsindividuals.
(b) The Surviving Company shallParent shall maintain, and Parent or shall cause the Surviving Company toEntity to maintain, maintain at no expense to the beneficiaries, in effect for at least six (6) years from the Effective Time the current policies of the directors’ and officers’ liability insurance policies and fiduciary liability insurance maintained by the Company with respect to matters occurring prior to the Effective Time, including acts (provided that Parent or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company Entity may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability that conditions which are no not less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required advantageous to expend pursuant any beneficiary thereof) with respect to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, matters existing or occurring at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy or prior to the Effective Time on terms, conditions, retentions and limits from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance. Section 6.08(b) of liability no less advantageous to the Indemnified Parties than Company Disclosure Letter lists the existing current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by At the Company’s option, the Company may purchase from insurance carriers with comparable credit ratings, prior to the Effective Time, a six-year prepaid “tail policy” providing at least the Surviving Company shall, same coverage and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the amounts containing terms and conditions that are no less advantageous to the insured than the current policies of this Section 6.05, directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to claims arising from and after facts or events that occurred at or before the Effective Time, including the transactions contemplated hereby, and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance. In the event the Company elects to purchase such a “tail policy”, the Surviving Company Entity shall comply (and Parent shall cause the Surviving Company Entity to) maintain such “tail policy” in full force and effect and continue to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with honor their respective obligations thereunder. Parent agrees to indemnify honor and hold harmless (including any obligations perform under, and to advance funds for expenses): (i) cause the Indemnified Parties against any Surviving Entity to honor and perform under, all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of indemnification agreements entered into by the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions subsidiaries with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party.
(c) prior This Section 6.08 shall survive the consummation of the Merger, is intended to or at the Effective Time, to the extent provided under benefit the Company’s or such Subsidiaries’ respective organizational , the Surviving Entity and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; providedeach Indemnified Party, that such indemnification shall be subject binding on all successors and assigns of the Surviving Entity and Parent, and shall be enforceable by each of the Indemnified Parties and their heirs and Representatives. The provisions of this Section 6.08 are intended to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or be for the benefit of the Company of, and will be enforceable by, each Indemnified Party, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any of its Subsidiariesother rights to indemnification or contribution that any such Person may have by contract or otherwise.
(d) In the event the Company or that the Surviving Company Entity or any of their respective its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company 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 assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, Entity shall assume succeed to the obligations set forth in this Section 6.056.08. In addition, the Surviving Entity shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Entity unable to satisfy its obligations under this Section 6.08.
(e) The agreements and covenants contained in rights of the Indemnified Parties under this Section 6.05 6.08 shall be in addition to any other rights an such Indemnified Party Parties may have under the memorandum and articles of association Organizational Documents of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, or under the CICL or other applicable Law, or otherwiseany Indemnification Agreements. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.08 is not prior to to, or in substitution for for, any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (Castle Brands Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent agrees that all rights to indemnification, advancement of expenses and exculpation provisions 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 a member, officer, director, or manager of the indemnification agreements by and among Company or any of its Subsidiaries (each an “Indemnified Party”) as provided in the Company and its directors and certain executive officers Organizational Documents of the Company, in each case as in effect at on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.09 of the Company Disclosure Letter, shall be the obligations of the Surviving Company in the Merger and shall remain in full force and effect in accordance with their terms, and, in the event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.
(b) The certificate of incorporation and bylaws of Parent after the Effective Time shall survive contain provisions with respect to exculpation and indemnification that are, to the Merger extent permitted by the Laws of the State of Delaware in the event the Conversion is consummated or by the Laws of the State of Colorado in the event the Conversion is not consummated, at least as favorable as those contained in the certificate of incorporation and shall bylaws of Parent immediately prior to the Effective Time, which provisions will not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of Indemnified Parties unless such modification is required by law or consented to in writing by the current or former directors or officers of Indemnified Parties then in office. For six years after the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable Effective Time, to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in fullest extent permitted under applicable Law, the memorandum and articles of association of Parent (the Company as in effect on the date hereof“Indemnifying Party”) shall indemnify, defend, and Parent shall cause hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments, and fines arising in whole or in part out of actions or omissions in their capacity as such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, occurring at or prior to the Effective TimeTime (including in connection with the transactions contemplated by this Agreement), were directors, officers, employees, fiduciaries or agents of the Company, unless such modification and shall be required by Law. From and after the Effective Time, any agreement of any reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments, and fines as such expenses are incurred, subject to the Company Parent’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law; provided, however, that the Parent will not be liable for any settlement effected without the Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsdelayed).
(bc) The Surviving Company shall, and Parent Parties shall cause the Surviving Company to, (i) maintain in effect for a period of six (6) years from after the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If Company immediately prior to the Effective Time (provided, that the Parent may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company 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 six 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, managers 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, that such “tail” prepaid policies have been obtained by are no greater than 200% of the Company annual premium in place prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) The obligations of the Parent under this Section 5.09 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 5.09 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.09 applies shall be third party beneficiaries of this Section 5.09, each of whom may enforce the provisions of this Section 5.09).
(e) In the event the Company or the Surviving Company Parent or any of their respective its successors or assigns assigns: (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity of in such consolidation or merger merger; or (ii) transfers all or substantially all of its properties and assets to any personPerson, then, and in each either such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, Parent shall assume all of the obligations set forth in this Section 6.05.
(e) 5.09. The agreements and covenants contained in this Section 6.05 herein shall not be in addition deemed to be exclusive of any other rights an to which any Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents)is entitled, or any agreement between an Indemnified Party and the Company or any of its Subsidiarieswhether pursuant to Law, under the CICL or other applicable LawContract, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive waive, or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors directors, managers and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 5.09 is not prior to to, or in substitution for for, any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among between the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.05(b), the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its the Surviving Company’s Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL CICA or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts by the Surviving Company under Section 6.05(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements, the person seeking indemnification shall use commercially reasonable efforts to notify the Surviving Company promptly to prevent the Surviving Company or any of its Subsidiaries from being materially and adversely prejudiced by late notice. Unless (x) otherwise provided in any applicable agreement or document providing for indemnification to the contrary, or (y) joint representation is inappropriate due to a conflict of interest between the person seeking indemnification and the Surviving Company (or its applicable Subsidiary) or any other person represented by the counsel that is proposed by the Surviving Company or such Subsidiary to conduct the defense of the person seeking indemnification, (i) the Surviving Company (or a Subsidiary nominated by it) shall have the right to participate in any such Action and, at its option, assume the defense of such Action; (ii) the person seeking indemnification shall have the right to effectively participate in the defense or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action; and (iii) in the event the Surviving Company (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Company nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL CICA or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The To the fullest extent permitted by Law, the articles of association and bylaws of NewCo, the Surviving Corporation and the Company shall contain provisions no less favorable with respect to indemnification, exculpation, advancement or expense reimbursement than are set forth in (i) the articles of association and exculpation provisions bylaws of the indemnification agreements by and among the Company and its directors (ii) the certificate of incorporation and certain executive officers as in effect at the Effective Time shall survive the Merger and bylaws of Spartan, 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyCompany or Spartan, as applicable, unless such modification shall be required by applicable Law. From and after The Parties further agree that with respect to the Effective Timeprovisions of the articles of association, any agreement bylaws, limited liability company agreements, or other organizational documents of any Indemnified Party with the Company Subsidiaries relating to indemnification, exculpation, advancement or any expense reimbursement, such provisions shall not be amended, repealed or otherwise modified for a period of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time in any manner that would affect adversely the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring rights thereunder of individuals who, at or prior to the Effective Time, including acts were directors, officers, employees, fiduciaries or omissions occurring in connection with this Agreement and the consummation agents of the Transactions (the parties covered therebysuch Company Subsidiary, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event unless such modification shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% by applicable Law. For a period of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to years from the Effective Time, the Surviving Company shall, and Parent NewCo agrees that it shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) each present and former director and officer of the Indemnified Parties Company or Spartan, as applicable, against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, damages or liabilities and amounts paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision matters existing or any other indemnification occurring at or advancement right of any Indemnified Party) prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent provided that the Company or Spartan, as applicable, would have been permitted under applicable Law, the Company’s articles of association, certificate of organization, or such Subsidiaries’ respective organizational and governing documents the bylaws of the Company or agreements Spartan, as applicable, in effect on the date hereof of this Agreement to indemnify such person (true including the advancing of expenses as incurred to the fullest extent permitted under applicable Law).
(b) For a period of six years from the Effective Time, NewCo shall maintain in effect directors’ and officers’ liability insurance (“D&O Insurance”) covering (i) those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy (true, correct and complete copies of which shall have been delivered heretofore made available to Parent Spartan or its agents or Representatives in the Virtual Data Room) on terms not less favorable than the terms of such current insurance coverage and (ii) those persons who are currently covered by Spartan’s directors’ and officers’ liability insurance policy on terms not less favorable than the terms of such current insurance coverage.
(c) Prior to the Effective Time, Spartan may elect to have the obligation set forth in Section 7.06(b)(ii) fulfilled through the purchase of a prepaid “tail” policy with respect to Spartan’s D&O Insurance from an insurance carrier with the same or better credit rating as Spartan’s current directors’ and officers’ liability insurance carrier. If Spartan elects to purchase such a “tail” policy prior to the Effective Time, NewCo will maintain such “tail” policy in full force and effect for a period of no less than six years after the Effective Time and continue to honor its obligations thereunder.
(d) Prior to or in connection with the Closing, NewCo shall obtain “go-forward” D&O Insurance that is reasonably satisfactory to Spartan to cover the post-Closing directors and officers of NewCo, the Company, the Surviving Corporation, and the Company Subsidiaries. From and after the date hereofof this Agreement, NewCo, the Company, and Spartan shall cooperate in good faith with respect to any efforts to obtain the insurance described in this Section 7.06, including the selection of any insurance broker to obtain such “go-forward” D&O Insurance, communications with such insurance broker, access to any insurance broker presentations, and review of underwriter quotes and draft policies for such insurance, and NewCo, the Company, and Spartan shall make available their Representatives as needed for any underwriting call.
(e) With respect to any claims that may be made under any D&O Insurance discussed in this Section 7.06, (i) prior to the Effective Time, Spartan, NewCo, and the Company shall cooperate with any other party as reasonably requested by such other party, and (ii) after the Effective Time, NewCo and the Company shall cooperate with any person insured by such policies as reasonably requested by such person.
(f) On the Closing Date, NewCo shall enter into customary indemnification agreements reasonably satisfactory to each of the Company and Spartan with the post-Closing directors and officers of NewCo, which indemnification agreements shall continue to be effective following the Closing. For the avoidance of doubt, the indemnification agreements with the pre-Closing directors and officers of Spartan in effect as of the date hereof shall continue to be effective following the Closing, and NewCo shall cause the Surviving Corporation to continue to honor its obligations thereunder.
(g) For a period of six years from the Effective Time, NewCo agrees that it shall indemnify and hold harmless Sponsor and each present and former director, officer and affiliate of Sponsor, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time and related to the Transactions, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted by under applicable Law (including the CICL or any other applicable Law; provided, that such indemnification shall be subject advancing of expenses as incurred to any limitation imposed from time to time the fullest extent permitted under applicable Law; ). Notwithstanding anything herein to the contrary, the Parties expressly acknowledge and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision agree that Sponsor shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions express third party beneficiary of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party7.06(g).
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Business Combination Agreement (Spartan Acquisition Corp. III)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the certain indemnification agreements by and among the Company and its directors and certain of its executive officers officers, as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors directors, officers or officers employees of the Company or any of its Subsidiariessubsidiaries (the “Indemnified Parties”). The memorandum Memorandum and articles Articles of association Association of the Surviving Company shall Corporation will contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than that are set forth in at least as favorable to the memorandum and articles of association directors, officers or employees of the Company as those contained in the Company Memorandum and Articles of Association as in effect on the date hereof, and Parent shall cause such except to the extent prohibited by the Cayman Companies Law or any other applicable Law, which provisions will not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyIndemnified Parties, unless such modification shall be is required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from From and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for or expenses): ) (i) the Indemnified Parties thereof against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries such subsidiary, or (B) any acts or omissions occurring or alleged to have occurred occur prior to or at the Effective Time to the extent provided under the Company’s or Company Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof and to the fullest extent permitted by the Cayman Companies Law or any other applicable Law, including (including acts or omissions with respect to x) the approval of this Agreement Agreement, the Merger or the Transactions transactions contemplated by this Agreement or arising out of or pertaining to the Transactions transactions contemplated by this Agreement and (y) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, however, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; , and (ii) such persons Indemnified Parties against any and all Damages arising out of acts or omissions in connection with such persons’ official capacity Persons serving as an officer, director or other fiduciary in the Company or any of its Subsidiaries entity if such service was at the request or for the benefit of the Company or any Company Subsidiary.
(c) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain the Company’s and the Company Subsidiaries’ existing directors’ and officers’ liability insurance (including for acts or omissions occurring in connection with this Agreement and the consummation of its Subsidiariesthe transactions contemplated hereby) covering each Indemnified Party by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof for a period of six years after the Effective Time; provided, however, that, subject to the immediately succeeding sentence, in no event shall the Surviving Corporation be required to expend in any one year an amount in excess of 300% of the current annual premium paid by the Company for such insurance. In addition, the Company may purchase a six year “tail” prepaid policy prior to the Effective Time on terms and conditions providing substantially equivalent benefits to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Closing, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations under this Section 6.7(c) shall terminate.
(d) In the event the Company or If Parent, the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any personPerson, thenthen the obligations of Parent or the Surviving Corporation, as the case may be, that are set forth under this Section 6.7 shall survive, and in each such caseto the extent necessary, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.056.7.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 6.7 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party6.7.
(f) The agreements and covenants contained in this Section 6.7 shall not be deemed to be exclusive of any other rights to which any such 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries Company Subsidiary or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.7 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (ShangPharma Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and Merger Sub agree that all rights to indemnification, exculpation or advancement of expenses now existing in favor of, and exculpation provisions all limitations on the personal Liability of the indemnification agreements by each present and among the Company former director, and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers officer of the Company or any of its Subsidiaries. The memorandum and articles of association provided for in the Company’s Charter Documents in effect as of the Surviving Company date hereof (the “Fiduciary Indemnitees”), shall contain provisions no less favorable continue to the intended beneficiaries be honored and in full force and effect, with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in claims arising from acts, omissions, facts or events that occurred on or before the memorandum and articles of association of the Company as in effect on the date hereofEffective Time, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from after the Effective Time Time; provided, however, that all rights to indemnification in respect of any claims asserted or made within such period shall continue until the disposition of such claim. The Organizational Documents of the Surviving Corporation will contain provisions with respect to indemnification, exculpation from Liability and advancement of expenses , with respect to claims arising from acts, omissions, facts or events that occurred on or before the Effective Time, that are at least as favorable as those currently provided in the Company’s certificate of incorporation and during such six (6) year period following the Effective Time, the Surviving Corporation shall not, and Parent shall cause the Surviving Corporation not to, amend, repeal or otherwise modify such provisions in any manner that would materially and adversely affect adversely the rights thereunder of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees, fiduciaries or agents Fiduciary Indemnitees of the Company, with respect to claims arising from acts, omissions, facts or events that occurred on or before the Effective Time(including, without limitation, the transactions contemplated by this Agreement), unless such modification shall be is required by Lawapplicable Legal Requirements. From and after the Effective Time, any agreement Parent and the Surviving Corporation also agree, jointly and severally, to indemnify and hold harmless the Fiduciary Indemnitees of any Indemnified Party with the Company with respect to claims arising from acts, omissions, facts of events that occurred on or before the Effective Time, to the extent (i) provided in any written indemnification agreements in effect between the Company and such individuals set forth on Part 4.2(a) of its Subsidiaries regarding exculpation the Disclosure Schedule or indemnification of liability or advancement of expenses shall be assumed (ii) required by the Surviving Company’s Charter Documents, shall survive in each case as in effect immediately prior to the Merger and shall continue in full force and effect in accordance with its termsEffective Time.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for For a period of six (6) years from after the Effective Time Time, Parent shall maintain in effect, with respect to claims arising from acts, omissions, facts or events that occurred on or before the Effective Time, the current level and scope of directors’ and officers’ liability insurance policies maintained by as in effect at the Company with respect to matters occurring immediately prior to the Effective Time, including acts or omissions occurring in connection with this Agreement Time covering those persons who are covered by the Company’s directors’ and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect officers’ liability insurance policy immediately prior to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, furtherhowever, that in no event shall if the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300aggregate annual premiums for such insurance at any time during such period exceed 200% of current annual premiums the per annum rate of premium currently paid by the Company for such insuranceinsurance on the date hereof, and if then Parent will provide the cost maximum coverage that will then be available at an annual premium equal to 200% of such insurance policy exceeds such amountrate. Notwithstanding the foregoing, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company Parent may and, at Parent’s request, the Company shall, purchase a satisfy its obligations under this Section 4.2(b) by procuring an equivalent six (6)-year 6) year “tail” prepaid policy prior to under the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the Company’s existing directors’ and officers’ liability insurance maintained policy, the equivalent annual premium for which “tail” policy shall not exceed 200% of the per annum rate of premium currently paid by the Company. If Company for directors’ and officers’ liability insurance; provided that if the equivalent annual premium for such “tail” prepaid policies have been obtained policy exceeds 200% of the per annum rate of premium currently paid by the Company prior for directors’ and officers’ liability insurance, then Parent will provide the maximum coverage that will then be available at an equivalent annual premium equal to the Effective Time, the Surviving Company shall, 200% of such rate and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue doing so will be deemed to honor the respective have satisfied its obligations thereunder, and all other obligations of Parent or Surviving Company under pursuant to this Section 6.05(b) shall terminate4.2(b).
(c) Subject The parties agree that Parent and the Surviving Corporation shall have the right to assume control of the terms defense of any claim or action against a Fiduciary Indemnitee covered by Section 4.2 (a “Fiduciary Claim”), with counsel of Parent’s choosing. The applicable Fiduciary Indemnitee shall cooperate with Parent and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company in such defense and make available to them all witnesses, pertinent records, materials and information in such Fiduciary Indemnitee’s possession or under its control relating thereto. The applicable Fiduciary Indemnitee shall comply have the right to participate in (but not control) the defense of a Fiduciary Claim assumed by Parent, at the Fiduciary Indemnitee’s expense, by retaining independent legal counsel reasonably satisfactory to Parent. Notwithstanding the foregoing, if Parent determines that a conflict of interest or potential conflict of interest exists between the Fiduciary Indemnitee and Parent, the Fiduciary Indemnitee may retain one (1) independent legal counsel reasonably satisfactory to Parent, and Parent shall cause or the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent Corporation shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including pay such reasonable attorneys’ fees and expenses)expenses of such counsel as are acceptable to Parent; provided that the Fiduciary Indemnitee shall not settle, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with compromise or consent to the entry of any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions judgment with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) a Fiduciary Claim without Parent’s prior to or at the Effective Timewritten consent, to the extent provided under the Companywhich consent will be in Parent’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariessole discretion.
(d) In The provisions of this Section 4.2 are intended to be for the event benefit of, and shall be enforceable by and against, each of the Fiduciary Indemnitees, and his or her heirs and Representatives. The provisions in this Section 4.2 are intended to be in addition to the rights otherwise available to the current directors, officers and employees of the Company by Legal Requirements, charters, bylaws or agreements.
(e) If Parent or the Surviving Company Corporation or any of their respective the successors or assigns of Parent or the Surviving Corporation (i) consolidates with or merges into any other person Person and shall not be the continuing or Surviving Company surviving corporation or entity 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, to the extent necessary, proper provision shall be made so that the successors and assigns of the Company Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.054.2.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Viggle Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions By-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification agreements by and among than are set forth in Article VI of the Company and its directors and certain executive officers as in effect at By-laws of the Effective Time shall survive the Merger and Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the CompanyCompany (collectively, "Indemnified Directors/Officers"), unless such modification shall be required by Lawlaw. From All rights to indemnification, advancement of expenses and after exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, Time existing in favor of the Indemnified Directors/Officers as provided in any written indemnification contract or agreement of any Indemnified Party with the Company or any Subsidiary in effect on the date of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses this Agreement shall be assumed by the Surviving Company, shall survive Corporation in the Merger as of the Effective Time and shall continue in full force and effect in accordance with its termstheir terms and shall not be amended, repealed, terminated or otherwise modified (except as required by Law) for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Directors/Officers. Parent hereby unconditionally guarantees the obligations of the Surviving Corporation under this Section 6.07(a).
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ ' and officers’ ' liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those provided under favorable) with respect to matters occurring at or prior to the Company’s current policiesEffective Time; provided, furtherhowever, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b6.07(b) more than an amount per year equal to 300200% of current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be $1,508,346 in the aggregate). If the provision and maintenance of insurance in accordance with this Section 6.07(b) would exceed 200% of such current annual premiums, (i) Parent shall notify the covered officers and directors of the amount of such excess and give such persons the opportunity to reimburse Parent and the Surviving Corporation the amount of such excess and if and for so long as such reimbursement is made 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 Parent, and if the Surviving Corporation in accordance with the immediately preceding clause (i), then Parent and the Surviving Corporation shall provide (at no cost to the covered officers and directors) the greatest amount of substantially equivalent insurance obtainable for 200% of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminatecurrent annual premiums.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.056.07.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s 's current policies; provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (which premiums the Company represents and warrants to be US$267,645 in the aggregate), and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts under Section 6.05(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Corporation promptly, but in all events no later than the earlier of (i) five (5) days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Corporation or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Corporation (or a Subsidiary nominated by it) shall have the right to participate in any such Action and, at its option, assume the defense of such Action. The person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action. In the event the Surviving Corporation (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Corporation nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationFrom and after the Effective Time, advancement and exculpation provisions of the indemnification agreements by and among Parent will cause the Company and its directors the Company Subsidiaries to fulfill and certain executive officers honor in all respects the obligations of the Company and the Company Subsidiaries pursuant to (i) each indemnification agreement in effect between the Company or any of the Company Subsidiaries and any Indemnified Person, and (ii) any indemnification provision and any exculpation provision set forth in the Organizational Documents of the Company or any of the Company Subsidiaries as in effect at on the date of this Agreement. The Organizational Documents of the Company and the Company Subsidiaries shall continue to contain the provisions with respect to indemnification and exculpation from liability set forth in such Organizational Documents on the date of this Agreement, and, from and after the Effective Time shall survive the Merger and Time, such provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would could materially adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsPerson.
(b) The Surviving Company shallWithout limiting the provisions of Section 6.8(a), and Parent shall cause during the Surviving Company to, maintain in effect for six (6) years from period commencing at the Effective Time and ending on the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to sixth (6th) anniversary of the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including each Indemnified Person against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any costs, fees and all costs or expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, actionLegal Proceeding, suitarbitration, proceeding investigation or investigationinquiry, whether civil, criminal, administrative or investigative investigative, to the extent such claim, Legal Proceeding, arbitration, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (“Damages”), arising out of, relating to i) any action or omission or alleged action or omission in connection with (A) the fact that an such Indemnified Party is or was Person’s capacity as a director, officer officer, employee or employee agent of the Company or any of its the Company Subsidiaries or other Affiliates of the Company (Bregardless of whether such action or omission, or alleged action or omission, occurred prior to, at or after the Effective Time) or (ii) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect of the transactions contemplated by this Agreement, in each case to the approval extent permitted and provided for in the Organizational Documents of this Agreement the Company or the Transactions or arising out Company Subsidiaries, as applicable, as in effect at the date hereof and as permitted by applicable Legal Requirements.
(c) From the Effective Time through the sixth anniversary of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, Parent shall cause to be maintained in effect, for the extent provided under benefit of the Indemnified Persons, the current level and scope of directors’ and officers’ liability insurance coverage as set forth in the Company’s or such Subsidiariescurrent directors’ respective organizational and governing documents or agreements officers’ liability insurance policies in effect on as of the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Lawthis Agreement; provided, however, that (i) in no event shall Parent be required pursuant to this Section 6.8(c) to expend in any one year an amount in excess of 200% of the annual premium payable by the Company as of the date of this Agreement with respect to such indemnification current policy, it being understood that if the annual premiums payable for such insurance coverage exceed such amount, Parent shall be subject obligated to any limitation imposed from time obtain a policy with the greatest coverage available for a cost equal to time under applicable Law; such amount, and (ii) such persons against any in lieu of the foregoing, and all Damages arising out of acts or omissions notwithstanding anything to the contrary contained in such persons’ official capacity as an officerclause “(i)” above, director or other fiduciary in the Company may obtain a prepaid tail policy (the “Tail Policy”) prior to the Effective Time, which provides the Indemnified Persons with directors’ and officers’ liability insurance for a period ending no earlier than the sixth anniversary of the Effective Time.
(d) This Section 6.8 shall survive the Effective Time and shall also survive consummation of the Arrangement and the Effective Time. This Section 6.8 is intended to benefit, and may be enforced by, the Indemnified Persons and their respective heirs, representatives, successors and assigns, and shall be binding on all successors and assigns of Parent and the Company.
(e) For purposes of this Agreement, each individual who is or any of its Subsidiaries if such service was at the request an officer or for the benefit director of the Company or any of its Subsidiaries.
(d) In the event the Company Subsidiaries at or at any time prior to the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision Effective Time shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended deemed to be for the benefit of, and shall be enforceable by, each of the an “Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified PartyPerson.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.”
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, Parent agrees that all rights to indemnification and related rights to advancement and exculpation provisions of expenses on the indemnification agreements by and among the Company and its directors and certain executive officers as in effect part of each person who at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for is a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors director or officers officer of the Company or any of its Subsidiaries. The memorandum and (i) existing pursuant to the MBCA, (ii) the Company’s articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and organization or bylaws or (iii) each indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association agreement identified on Section 6.8(a) of the Company as Disclosure Schedule between any such person and the Company in effect on the date hereofof this Agreement (collectively, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company“Existing Indemnification Provisions”), shall survive the Merger and shall continue in full force and effect in accordance with its termsthe terms of such Existing Indemnification Provisions. Parent also agrees that for the period beginning from and after the Effective Time and ending the sixth anniversary of the Effective Time, it shall (and shall cause the Surviving Corporation to) indemnify all such persons to the fullest extent provided by the Existing Indemnification Provisions with respect to all actual or alleged acts or omissions prior to the Effective Time occurring in connection with or arising out of such individuals’ service as officers or directors of the Company or any of the Company Subsidiaries. Without limitation of the foregoing, if any such person is or becomes involved in any such capacity in any action, proceeding or investigation in connection with any actual or alleged action, inaction, state of affairs or other matter, including any matter related to the transactions contemplated by this Agreement, occurring on or prior to the Effective Time, to the extent such action, proceeding, investigation, allegation or other matter is the subject of the Existing Indemnification Provisions, Parent shall (or shall cause the Surviving Corporation to) pay such person’s reasonable fees and other expenses of counsel selected by such person (including the cost of any investigation, preparation and settlement) incurred in connection therewith promptly after statements therefor are received by Parent, to the extent that doing so would be consistent with the Company’s prior custom and practice. Parent shall be entitled to assume the defense of any such action or proceeding, with counsel selected by Parent reasonably acceptable to the indemnified person. Parent shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by any indemnified person in enforcing the indemnity and other obligations provided for in this Section. Notwithstanding the foregoing, no person shall be entitled to indemnification pursuant to this Section 6.8(a) with respect to any actual or alleged acts or omissions constituting (i) a breach of this Agreement or the Voting Agreement, (ii) criminal conduct or (iii) any violation of federal, state or foreign securities Laws relating to trading in any securities or the disclosure of nonpublic information, except to the extent such person is otherwise entitled to indemnification pursuant to the Existing Indemnification Provisions.
(b) The Parent agrees that the Company and, from and after the Effective Time, the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, maintain to be maintained in effect for not less than six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% policies of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If Company at the date of this Agreement; provided, however, that in no event shall the Surviving Corporation be required to pay an annual premium for such “tail” prepaid policies have been obtained coverage in excess of 200% of the last annual premium paid by the Company prior to the Effective Timedate of this Agreement, it being understood that if the annual premiums payable for such insurance coverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available for a cost equal to such amount. Notwithstanding anything contained in the previous sentence, the Surviving Company shall, and Parent shall cause may obtain a prepaid tail policy (the Surviving Company to, maintain such policies in full force and effect, and continue “Tail Policy”) prior to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) which policy provides Indemnified Persons with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ liability insurance claims for a period ending no earlier than the sixth anniversary of the Effective Time; provided that the aggregate premium for the Tail Policy shall not exceed $25,000,000. Parent’s obligations under any policy or other agreement this paragraph may be satisfied by the purchase of a Tail Policy that is or has been in existence with respect to provides the coverage described above. Except as permitted by the foregoing provisions of this Section 6.8(b), the Company shall not purchase any directors’ and officers’ liability insurance, including any Tail Policy, on or after the date of this Agreement without the written approval of Parent (which shall not be unreasonably withheld, delayed or conditioned), except in connection with any expiration of its Subsidiaries or their respective the Company’s current directors’ and officers, directors and employees, ’ liability insurance policy (it being understood and agreed that that, notwithstanding anything to the indemnification provided for contrary contained in this Section 6.05 is not prior to or in substitution for any Agreement, upon the expiration of the Company’s current directors’ and officers’ liability insurance policy, the Company may replace such claims under any such policies or other agreementspolicy with a policy having substantially the same level and scope of coverage).
Appears in 1 contract
Samples: Merger Agreement (American Power Conversion Corporation)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving CompanyCorporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(ba) The Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b6.05(a) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company Corporation shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company Corporation under this Section 6.05(b6.05(a) shall terminate.
(cb) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company Corporation shall comply (comply, and Parent shall cause the Surviving Company Corporation to comply) , with all of the Company’s obligations, and each of the Surviving Company Corporation and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; Law and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in of the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(c) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding which may result in the payment or advancement of any amounts under Section 6.05(b), the organizational and governing documents of the Company or any of its Subsidiaries, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Corporation promptly, but in all events no later than the earlier of (i) five (5) days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Corporation or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Corporation (or a Subsidiary nominated by it) shall have the right to participate in any such Proceeding and, at its option, assume the defense of such Proceeding (it being understood that, by electing to assume the defense thereof, the Surviving Corporation will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto). The person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Proceeding, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Proceeding. In the event the Surviving Corporation (or a Subsidiary nominated by it) assumes the defense of any Proceeding pursuant to this Section 6.05(c), neither the Surviving Corporation nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to the same Proceeding. Notwithstanding anything to the contrary set forth in this Section 6.05(a) or elsewhere in this Agreement, neither the Surviving Corporation nor any of its Affiliates (including Parent) shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim or Proceeding for which indemnification may be sought by an Indemnified Party under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim or Proceeding.
(d) In the event the Company or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, ; it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Samples: Merger Agreement (China Mobile Games & Entertainment Group LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for For a period of six years from after the Effective Time in any manner that would adversely affect Time, unless otherwise required by applicable Law, the rights thereunder certificate of the current incorporation and bylaws (or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association equivalent organizational documents) of the Surviving Company Corporation and its Subsidiaries shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and the indemnification of liability and advancement of expenses to directors and officers than are set forth in the memorandum and articles Certificate of association Incorporation or Bylaws (or equivalent organizational documents) of the Company (or the relevant Subsidiary) as in effect on the date hereof. Parent shall and shall cause the Surviving Corporation to indemnify, and Parent shall cause advance expenses to, each present and former director or officer of the Company and each Subsidiary (collectively, the “Indemnified Parties”), in and to the extent of their capacities as such provisions and not be amendedas stockholders of the Company or any Subsidiary, repealed in respect of actions, omissions or otherwise modified for a period of six (6) years from events through the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required fullest extent permitted by Law. From and Without limiting the generality of the preceding sentence, if any Indemnified Party becomes involved in any actual or threatened action, suit, claim, proceeding or investigation covered by this Section 6.05 after the Effective Time, any agreement Parent shall, or shall cause the Surviving Corporation to, to the fullest extent permitted by Law, promptly advance to such Indemnified Party his or her legal or other expenses (including the cost of any Indemnified Party with investigation and preparation incurred in connection therewith). 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 regarding exculpation or indemnification prior to the date hereof, true and complete copies of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termswhich have been made available to Parent.
(b) The Surviving Company shall, Corporation shall either (i) cause to be obtained and Parent shall cause the Surviving Company to, maintain in effect for a “tail” insurance policy with a claims period of at least six (6) years from the Effective Time the current with respect to directors’ and officers’ liability insurance in amount and scope, and with other material terms and conditions, at least as favorable as the Company’s existing policies for claims arising from facts or events that occurred prior to the Effective Time or (ii) maintain the existing officers’ and directors’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those provided under to the Company’s current policiesIndemnified Parties) for a period of six years after the Effective Time so long as the annual premium therefor is not in excess of 300% of the last annual premium paid prior to the date hereof; provided, furtherhowever, that if the existing officers’ and directors’ liability insurance policies expire, are terminated or cancelled during such six-year period or require an annual premium in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to excess of 300% of the current annual premiums premium paid by the Company for such insurance, and if the cost Company will obtain as much coverage as can be obtained for the remainder of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage period for a cost premium not exceeding in excess of 300% (on an annualized basis) of such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminatecurrent premium.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this This Section 6.05 shall survive the consummation of the Merger and are is intended to be for the benefit of, and shall be enforceable by, each present or former directors or officers of the Indemnified Parties and Company or its Subsidiaries, their respective heirs and legal representatives, each of which personal representatives and shall be a Third Party beneficiary binding on the Surviving Corporation and its successors and assigns. If Parent or the Surviving Corporation or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or shall cease to continue to exist for any reason or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity (including by dissolution), then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation and the transferee or transferees of such properties and assets, as applicable, shall assume all of the provisions of obligations set forth in this Section 6.05. The obligations of Parent agreements and the Surviving Company under this Section 6.05 covenants contained herein shall not be terminated or modified in such a manner as deemed to adversely affect the rights be exclusive of any Indemnified Party without the consent of other rights to which any such Indemnified Party.
(f) present or former director or officer is entitled, whether pursuant to Law, contract or otherwise. Nothing in this Agreement is intended to, shall be construed to to, or shall shall, release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationParent and Acquisition Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, advancement and exculpation provisions 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 indemnification agreements by current or former directors, officers and among employees, if any (the foregoing persons, the “D&O Indemnified Parties”), as the case may be, of the Company and or its directors and certain executive officers Subsidiaries as provided in their respective organizational documents as in effect at on the Effective Time date of this Agreement or in any Contract shall survive the Merger and shall not continue in full force and effect. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to D&O Indemnified Parties with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time (including any matters arising in connection with this Agreement or the transactions contemplated by this Agreement), to the fullest extent that the Company or its Subsidiaries would be permitted by applicable Law and to the fullest extent required by the organizational documents of the Company or its Subsidiaries as in effect on the date of this Agreement. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee liability that are no less favorable to the D&O Indemnified Parties than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the date of this Agreement, which provisions thereafter shall not, for a period of six (6) years from the Effective Time, be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any D&O Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsParties.
(b) The Surviving Without limiting the provisions of Section 6.6(a), to the fullest extent that the Company shallwould be permitted by applicable Law to do so, and Parent shall or shall cause the Surviving Company Corporation to, maintain in effect for six : (6i) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including each D&O Indemnified Party against and from any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)investigative, arising to the extent such claim, action, suit, proceeding or investigation arises out of, relating to of or in connection with pertains to: (A) the fact that an any alleged action or omission in such D&O Indemnified Party is or was Party’s capacity as a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time; or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions transactions contemplated by this Agreement and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon confirmation by the D&O Indemnified Party of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification applicable to him or her and a customary written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined that the standard of conduct for indemnification was not met. Any determination required to be made with respect to whether the conduct of any D&O Indemnified Party complies or complied with any applicable standard shall be made by independent legal counsel selected by the D&O Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, and the fees of such counsel shall be paid by the Surviving Corporation. Notwithstanding anything to the contrary contained in this Section 6.6(b) or elsewhere in this Agreement, Parent shall not (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, unless such settlement, compromise, consent or termination includes an unconditional release of all of the D&O Indemnified Parties covered by the claim, action, suit, proceeding or investigation from all liability arising out of such claim, action, suit, proceeding or pertaining investigation.
(c) Unless the Company shall have purchased a “tail” policy prior to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified PartyEffective Time as provided below, for at least six (6) prior to or at years after the Effective Time, (i) Parent shall cause the Surviving Corporation and its other Subsidiaries to maintain in full force and effect the extent coverage provided under by the Company’s or such Subsidiariesexisting directors’ respective organizational and governing documents or agreements officers’ liability insurance and fiduciary insurance in effect on as of the date hereof (true of this Agreement and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted maintained by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries, as applicable (the “Existing D&O Insurance Policies”), or provide substitute policies for the Company and its current and former directors and officers who are currently covered by such Existing D&O Insurance Policies, in either case, on terms and conditions no less advantageous to the D&O Indemnified Parties, or any other Person entitled to the benefit of this Section 6.6, as applicable, than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated by this Agreement (provided that Parent or the Surviving Corporation, as applicable, shall not be required to pay an annual premium for such insurance in excess of three hundred percent (300%) of the aggregate annual premiums currently paid by the Company or any of its Subsidiaries, as applicable, on an annualized basis, but in such case shall purchase as much of such coverage as possible for such amount) and (ii) Parent shall not, and shall not permit the Surviving Corporation or its other Subsidiaries to, take any action that would prejudice the rights of, or otherwise impede recovery by, the beneficiaries of any such insurance, whether in respect of claims arising before or after the Effective Time. In lieu of such insurance, prior to the Effective Time, the Company may purchase a six (6) year “tail” prepaid policy on such terms and conditions (provided that the premium for such insurance shall not exceed three hundred percent (300%) of the aggregate annual premiums currently paid by the Company or any of its Subsidiaries, as applicable, on an annualized basis), in which event Parent shall cease to have any obligations under the first sentence of this Section 6.6(c).
(d) In the event the Company or that Parent, the Surviving Company Corporation, any of the Company’s Subsidiaries or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company surviving company or entity 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, Parent shall cause proper provision shall to be made so that the successors successor and assigns assign of the Company or Parent, the Surviving Company, as the case may be, Corporation or at Parent’s option, Parent, shall assume any such Subsidiary assumes the obligations set forth in this Section 6.056.6.
(e) The agreements and covenants contained in D&O Indemnified Parties to whom this Section 6.05 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 D&O Indemnified Party and his or her successors, heirs or representatives. The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other rights under this Section 6.6. The rights of each D&O Indemnified Party hereunder shall be in addition to to, and not in limitation of, any other applicable rights an such D&O Indemnified Party may have under the memorandum and articles of association respective organizational documents of the Company or any of its Subsidiaries (or equivalent constitutional documents)the Surviving Corporation, or any agreement between an Indemnified Party and other indemnification arrangement, the Company or any of its Subsidiaries, under the CICL or other applicable Law, DGCL or otherwise. The provisions Notwithstanding any other provision of this Agreement, this Section 6.05 6.6 shall survive the consummation of the Merger indefinitely (or any earlier period actually specified in this Section 6.6) and are intended to shall be for binding, jointly and severally, on all successors and assigns of Parent and the benefit ofSurviving Corporation, and shall be enforceable by, each of by the D&O Indemnified Parties and their successors, heirs and legal or representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall or will be construed to or shall to, release, waive or impair any rights to directors’ and officers’ insurance claims under pursuant to any applicable insurance policy or other indemnification agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or for any of their respective officersdirectors, directors and officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.6 is not prior to or in substitution for any such claims under any pursuant to such policies or other agreements. Following the Effective Time, the obligations of Parent and the Surviving Corporation under this Section 6.6 shall not be terminated or modified in any manner adverse to the rights of any D&O Indemnified Party without the consent of such affected D&O Indemnified Party.
Appears in 1 contract
Samples: Merger Agreement (Twitter, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for For a period of six years from after the Effective Time in any manner that would adversely affect Time, unless otherwise required by applicable Law, the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association incorporation and bylaws of the Surviving Company Corporation shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and the indemnification of liability directors and advancement of expenses officers than are set forth in the memorandum and articles of association incorporation or bylaws of the Company as in effect on the date hereof. Parent shall, and Parent shall cause the Surviving Corporation to, indemnify each present and former director or officer of the Company (collectively, the “Indemnified Parties”), in and to the extent of their capacities as such provisions and not be amendedas shareholders of the Company, repealed in respect of actions, omissions or otherwise modified for a period of six (6) years from events through the Effective Time in any manner that to the fullest extent permitted by Law. The Surviving Corporation shall not amend its bylaws after the Effective Time if such action would adversely affect adversely the rights thereunder of individuals who, at on or prior to the Effective Time, were directorsentitled to advances, officersindemnification, employeescontribution or exculpation thereunder for actions or omissions by such individuals in their capacity as directors or officers at any time prior to the Effective Time. The individuals referred to in the preceding sentence shall include any individuals who served at any time as directors or officers of any Subsidiary of the Company at the Company’s request, fiduciaries it being acknowledged by the Parties that each director or agents officer and each former director and officer of the Company is or was doing so at such request of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent Corporation shall either (i) cause the Surviving Company to, maintain in effect for to be obtained a “tail” insurance policy with a claims period of at least six (6) years from the Effective Time the current with respect to directors’ and officers’ liability insurance in amount and scope materially not less favorable than the Company’s existing policies for claims arising from facts or events that occurred prior to the Effective Time or (ii) maintain the existing officers’ and directors’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no materially not less favorable than those provided under to the Company’s current policiesIndemnified Parties) for a period of six years after the Effective Time so long as the annual premium therefor is not in excess of 250% of the last annual premium paid prior to the date hereof; provided, furtherhowever, that if the existing officers’ and directors’ liability insurance policies expire, are terminated or cancelled during such six-year period or require an annual premium in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300excess of 250% of the current annual premiums premium paid by the Company for such insurance, and if the cost Company will obtain as much coverage as can be obtained for the remainder of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage period for a cost premium not exceeding in excess of 250% (on an annualized basis) of such amountcurrent annual premium. In additionlieu of the foregoing, the Company may andpurchase, at Parent’s requestprior to, on or after the Company shallEffective Time, purchase a six (6)-year six-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company policy in respect of acts or omissions occurring prior to the Effective TimeDate covering each such director and officer; provided, however, that the Surviving Company shall, and Parent shall cause not purchase any such policy for an amount in excess of the Surviving Company to, maintain such policies amount set forth in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminateof the Company Disclosure Letter without the prior written consent of Parent.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, If Parent or the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company Corporation or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or shall cease to continue to exist for any reason 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 reasonably satisfactory to the Company so that the successors and assigns of the Company Surviving Corporation and the transferee or the Surviving Companytransferees of such properties and assets, as the case may be, or at Parent’s option, Parentapplicable, shall assume all of the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The All rights to indemnification, exculpation and advancement and exculpation provisions existing in favor of the indemnification agreements by current or former directors, general partners, officers and among managers of any of the Company and its directors the Company Subsidiary, and certain executive officers each Person who served at the request of the Company and the Company Subsidiary as a director, officer, general partner, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise of or used by the Company and the Company Subsidiary (the “D&O Indemnified Persons”), as provided in the Organizational Documents of the Company and the Company Subsidiary, or in any indemnification agreement or arrangement as in effect at as of the Effective Time date of this Agreement with respect to a D&O Indemnified Person’s conduct occurring prior to the Closing, shall survive the Merger consummation of the Transaction and shall continue in full force and effect from and after the Closing for a period of six (6) years or, if later, until the settlement or final adjudication of any Proceeding commenced during such period. Purchaser shall cause the organizational documents of the Company and the Company Subsidiary to contain provisions with respect to indemnification, exculpation and advancement expenses of the D&O Indemnified Persons, with respect to a D&O Indemnified Person’s conduct occurring prior to the Closing, no less favorable to the D&O Indemnified Persons than set forth in the organizational documents of the Company and the Company Subsidiary as in effect on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time Closing in any manner that would adversely affect the rights thereunder of any D&O Indemnified Person thereunder, except as is required under applicable Legal Requirement.
(b) At the current Closing, Seller shall cause the Company or former directors the Company Subsidiary to, and the Company or the Company Subsidiary shall, obtain and pay for directors’ and officers’ liability insurance covering (as direct beneficiaries) all persons who were directors, general partners, managers or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable Subsidiary prior to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified Closing for a period of six (6) years from the Effective Time Closing Date (the “D&O Tail Policy”), in any manner that would affect adversely the rights thereunder of individuals whoeach case, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From type and after the Effective Time, any agreement of any Indemnified Party with the Company or any amount of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under of the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by as of the Company. If such “tail” prepaid policies have been obtained by date hereof by, or for the benefit of, the Company prior to or the Effective Time, Company Subsidiary (the Surviving Company shall“Current Policies”), and Parent with such other terms as are no less favorable than those in the Current Policies. For a period of six (6) years following the Closing, Purchaser shall cause the Surviving Company or the Company Subsidiary to, and the Company or the Company Subsidiary shall, maintain any such policies directors’ and officers’ liability insurance in full force and effecteffect for its full term, and continue to honor the respective all obligations thereunder. For the avoidance of doubt, all premiums and all other obligations fees related to the procurement of Parent or Surviving Company under this Section 6.05(bthe D&O Tail Policy shall be borne fifty percent (50%) shall terminateby Purchaser and fifty percent (50%) by Seller.
(c) Subject to the terms and conditions of this Section 6.05If Purchaser, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns Subsidiary (i) consolidates shall consolidate with or merges merge into any other person Person and shall not be the continuing or Surviving Company 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 Purchaser, the Company or the Surviving CompanyCompany Subsidiary, as the case may be, or at Parent’s option, Parent, shall assume all of the obligations of Purchaser, the Company or the Company Subsidiary, as applicable, set forth in this Section 6.055.7.
(ed) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and 5.7 are (i) intended to be for the benefit of, and shall will be enforceable by, the D&O Indemnified Persons, and each of the Indemnified Parties such Person’s heirs, legatees, and their heirs representatives and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent binding on Purchaser and the Surviving Company under this Section 6.05 shall or the Company Subsidiary and may not be terminated or modified amended in any manner adverse to such a manner as to adversely affect the rights of any D&O Indemnified Party Persons without the their prior written consent of such Indemnified Party.
and (fii) Nothing in this Agreement is intended addition to, shall be construed to or shall releaseand not in substitution for, waive or impair any other rights to directors’ and officers’ insurance claims under any policy indemnification or other agreement contribution that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies D&O Indemnified Person may have by Contract or other agreementsotherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnificationSurviving Corporation and its Subsidiaries shall, advancement and exculpation provisions Parent shall cause the Surviving Corporation to, honor and fulfill in all respects the obligations of the indemnification agreements by and among the Company and its Subsidiaries under any and all indemnification agreements between the Company or any of its Subsidiaries and any of their respective present or former directors and certain executive officers (collectively, the “Indemnified Parties”). In addition, the Certificate of Incorporation and By-Laws of the Surviving Corporation shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in Articles VII and VIII of the Amended and Restated Certificate of Incorporation of the Company, as in effect at amended, and Article VII of the Effective Time shall survive By-Laws of the Merger and 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 adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and Company or any of its Subsidiaries.
(b) For a period of six years 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 Indemnified 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 (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring on or before the Effective Time. In the event of any such claim, action, suit, proceeding or investigation, (i) Parent or the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received, (ii) neither Parent nor the 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 Surviving Corporation shall be liable for any settlement effected without the Surviving Corporation’s written consent (which consent shall not be unreasonably withheld or delayed); 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 By-Laws or similar organizational documents of the Company and the Surviving Corporation or any of their Subsidiaries, or under any Law or under any agreement of any Indemnified Party Person with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsSubsidiaries.
(bc) The Surviving Company shall, Corporation shall either (i) 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 Parent shall cause officers’ liability insurance in amount and scope at least as favorable as the Surviving Company to, Company’s existing policies for claims arising from facts or events that occurred on or prior to the Effective Time; or (ii) maintain in effect for six (6) years from the Effective Time Time, if available, the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, provided that the Surviving Company Corporation may substitute therefor policies of at least the same coverage containing terms, conditions, retentions terms and limits of liability conditions that are no not less favorable than those provided under favorable) with respect to matters occurring prior to the Company’s current policiesEffective Time; provided, furtherhowever, that in no event shall the Surviving Company Corporation be required to expend pursuant to this Section 6.05(b6.04(c) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, however, that in the event of an expiration, termination or cancellation of such indemnification current policies, Parent or the Surviving Corporation shall be subject required to any limitation imposed from time to time obtain as much coverage as is possible under applicable Law; and (ii) substantially similar policies for such persons against any and all Damages arising out of acts or omissions maximum annual amount in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiariesaggregate annual premiums.
(d) In the event the Company Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company 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 Parent or the Surviving CompanyCorporation, as the case may be, or at Parent’s option, Parent, shall assume succeed to the obligations set forth in this Section 6.056.04.
(e) The agreements and covenants contained in this Section 6.05 Parent shall be in addition cause the Surviving Corporation to any other rights an Indemnified Party may have under the memorandum and articles of association perform all of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation obligations of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company Corporation under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party6.04.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Psychiatric Solutions Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent and Merger Sub agree that all rights to indemnification, exculpation or advancement of expenses now existing in favor of, and exculpation provisions all limitations on the personal Liability of each present and former director and officer of the indemnification agreements by and among Company provided for in the Company and its directors and certain executive officers as Company’s Charter Documents in effect at as of the date hereof (the “Fiduciary Indemnitees”), shall continue to be honored and in full force and effect, with respect to claims arising from acts, omissions, facts or events that occurred on or before the Effective Time shall survive the Merger and shall not be amendedTime, repealed or otherwise modified for a period of six (6) years from after the Effective Time Time; provided, however, that all rights to indemnification in respect of any claims asserted or made within such period shall continue until the disposition of such claim. The Organizational Documents of the Surviving Corporation will contain provisions with respect to indemnification, exculpation from Liability and advancement of expenses, with respect to claims arising from acts, omissions, facts or events that occurred on or before the Effective Time, that are at least as favorable as those currently provided in the Company’s certificate of incorporation and during such six (6) year period following the Effective Time, the Surviving Corporation shall not, and Parent shall cause the Surviving Corporation not to, amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees, fiduciaries or agents Fiduciary Indemnitees of the Company, with respect to claims arising from actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification shall be is required by Lawapplicable Legal Requirements. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by Parent and the Surviving CompanyCorporation also agree, shall survive jointly and severally, to indemnify and hold harmless the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by Fiduciary Indemnitees of the Company with respect to matters claims arising from acts or omissions occurring prior to the Effective Time, including acts or omissions occurring Time to the extent (i) provided in connection with this Agreement any written indemnification agreements in effect between the Company and the consummation such individuals set forth on Part 4.2(a) of the Transactions Disclosure Schedule or (the parties covered thereby, the “Indemnified Parties”ii) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under required by the Company’s current policies; providedCharter Documents, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company each case as in effect immediately prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements.
Appears in 1 contract
Samples: Merger Agreement (Viggle Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions 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 to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300150% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, provided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) Upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Action which may result in the payment or advancement of any amounts under Section 6.05(c), any Group Company’s organizational and governing documents, or any existing indemnification agreements, the person seeking indemnification shall notify the Surviving Company promptly, but in all events no later than the earlier of (i) five (5) days after actual receipt, and (ii) as soon as necessary after actual receipt to prevent the Surviving Company or any of its Subsidiaries from being materially and adversely prejudiced by late notice. The Surviving Company (or a Subsidiary nominated by it) shall have the right to participate in any such Action and, at its option, assume the defense of such Action. The person seeking indemnification shall have the right to effectively participate in the defense and/or settlement of such Action, including receiving copies of all correspondence and participating in all meetings and teleconferences concerning the Action. In the event the Surviving Company (or a Subsidiary nominated by it) assumes the defense of any Action pursuant to this Section 6.05(d), neither the Surviving Company nor any of its Subsidiaries shall be liable to the person seeking indemnification for any fees, disbursements or expenses of counsel subsequently incurred by such person with respect to the same Action.
(e) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, be shall assume the obligations set forth in this Section 6.05.
(ef) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which whom shall be a Third Party third-party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(fg) 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 or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to Corporation agrees that it will indemnify and hold harmless harmless, in each case to the extent (including subject to applicable Law) such Persons are indemnified as of the date of this Agreement by the Company pursuant to the Company Certificate of Incorporation, the Company Bylaws, the governing or organizational documents of any obligations to advance funds for expenses): subsidiary of the Company and any indemnification agreements in existence as of the date hereof and set forth on Section 6.11(a), each present and former director and officer of the Company or any of its subsidiaries (iin each case, when acting in such capacity) (the “Indemnified Parties Parties”), against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damages, liabilities and amounts or awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”)and whether formal or informal, arising out of, relating to or in connection with (A) matters existing or occurring at or prior to the Effective Time by reason of fact that an Indemnified Party such Person is or was a director, director or officer or employee of the Company or any of its Subsidiaries subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or was serving at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies request of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any such subsidiary as a director, officer, employee or agent of its Subsidiaries if such service was another Person (including serving at the request or for the benefit of the Company or any such subsidiary with respect to any employee benefit plan), whether asserted or claimed prior to, at or after the Effective Time.
(b) The provisions in the Surviving Corporation’s certificate of incorporation and bylaws with respect to indemnification, advancement of expenses and exculpation of the Indemnified Parties shall be no less favorable to such Indemnified Parties than such provisions contained in the Company Certificate of Incorporation and Company Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) For a period of six (6) years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (including any excess policies thereof) maintained by the Company (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiariessubsidiaries) with respect to claims arising from facts or events which occurred at or before the Effective Time; provided, however, that the Surviving Corporation shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current aggregate annual premium paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporation’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the foregoing, the Company, in consultation with Parent, may obtain at or prior to the Effective Time a six-year “tail” policy under the Company’s existing directors’ and officers’ liability and fiduciary liability insurance policies (including any excess policies thereof) providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the aggregate, does not exceed the Premium Cap; provided, in the event that such equivalent coverage exceeds the Premium Cap, then the Company may purchase such equivalent coverage with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed).
(d) In the event the Company If Parent or the Surviving Company Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or Surviving Company 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 or Person or effect any division or similar transaction, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company Parent or the Surviving Company, as the case may be, or at Parent’s option, Parent, Corporation shall assume all of the obligations set forth in this Section 6.056.11.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 6.11 shall survive the consummation of Merger and, following the Merger and Effective Time, are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.11 is not prior to to, or in substitution for for, any such claims under any such policies or other agreementspolicies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, All rights to indemnification and rights to advancement of expenses and exculpation provisions from monetary liability for acts or omissions occurring prior to the Effective Time and existing as of the indemnification agreements by and among date hereof in favor of any current or former directors or officers of the Company and its directors Subsidiaries (each, an “Indemnitee”) as provided in the Company Organizational Documents and certain executive officers as any indemnification or other contracts of the Company in effect on the date hereof, if any, shall be assumed in the Merger by the Surviving Corporation, without further action, at the Effective Time and shall survive the Merger and continue in full force and effect in accordance with their terms. From and after the Effective Time, Parent shall cause the articles of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable with respect to exculpation from monetary liability for acts or omissions occurring prior to the Effective Time and with respect to indemnification and advancement of expenses, if any, than those in effect as of the date hereof in the Company Organizational Documents, and such provisions shall not be amended, repealed or otherwise modified for in a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its termsIndemnitees.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation of the Transactions (the parties covered thereby, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.05, from From and after the Effective Time, the Surviving Company shall comply Corporation hereby agrees that it will: (and Parent shall cause the Surviving Company to complyi) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless each present director and officer of the Company or any of its Subsidiaries existing on the date hereof (including any obligations to advance funds for expenses): (icollectively, “Incumbent Management”) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expensesfees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement “Costs”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) Action by reason of the fact that an Indemnified Party is such Incumbent Management was acting in his or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official her capacity as an officer, a director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit officer of the Company or any of its Subsidiaries.
(d) In , as applicable, whether asserted or claimed prior to, at or after the event Effective Time, including the Company or transactions contemplated by this Agreement; provided, however, that neither Parent nor the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision Corporation shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in required to indemnify any Incumbent Management pursuant to this Section 6.05.
(e6.02(b) The agreements and covenants contained in this Section 6.05 shall if such Incumbent Management is adjudged by a court of competent jurisdiction to be in addition liable to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and it shall be enforceable bydetermined in good faith (by independent U.S. counsel having national recognition reasonably selected by Parent) that such Incumbent Management (A) failed to act in good faith, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent and the Surviving Company under this Section 6.05 shall not be terminated (B) acted (or modified omitted to act) in such a manner as to adversely affect which such Incumbent Management reasonably believed was not in the rights best interests of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries Subsidiaries, as applicable, (C) acted (or their respective omitted to act) in a manner involving intentional misconduct, dishonesty, fraud or a knowing violation of Law, or (D) if as a result of such action (or omission), such Incumbent Management derived an improper personal benefit; and (ii) solely with respect to acts or omissions in connection with the authorization and approval of the Transaction Documents and the consummation by the Company of the Merger and the other transactions contemplated hereby and thereby, advance expenses (including reasonable attorney’s fees) incurred by Incumbent Management in defending any such Action; provided that such Incumbent Management provides a customary undertaking to repay such advances to Parent or the Surviving Corporation if it is ultimately determined that such Incumbent Management is not entitled to indemnification under this Section 6.02(b).
(c) Parent or the Surviving Corporation shall have the right to assume and control the defense of any Action for which indemnification or advance expenses is sought under this Section 6.02 or under the Company Organizational Documents or any indemnification contracts of the Company. Parent and the Surviving Corporation shall be obligated to pay for only one law firm or counsel for all Indemnitees in any jurisdiction, except to the extent there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of such Indemnitee and any other Indemnitee, in which case each Indemnitee with a conflicting position on a significant issue shall be entitled to retain separate counsel mutually satisfactory to Parent and such Indemnitee. The Indemnitee shall cooperate in the defense of any such matter. Parent shall not be liable for any settlement effected without its prior written consent (the decision with respect to which shall not unreasonably be delayed by Parent).
(d) Parent shall, or shall cause the Surviving Corporation to, obtain a commercially available run-off or tail policy (“Run-Off Insurance”), which shall (i) be for a term of six-years and have limits of $5 million, plus an additional $10 million in Side A coverage (with zero retention), (ii) be negotiated and implemented solely by Parent and its agents, (iii) provide coverage for each person or entity covered by the Company’s current directors’ and officers’ liability insurance policy in effect on the date hereof, (iv) not be cancelable by Parent, its agents or the Surviving Corporation during the six-year term thereof, and (v) be no less favorable with respect to coverage terms and amounts (including with respect to exclusions, self-retention, premiums, notice requirements and deductibles) in any material respect than the Company’s current primary directors’ and officers’ liability insurance policy coverage in effect as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be obligated or required to pay premiums for Run-Off Insurance under this Section 6.02(d) in excess of 200% of the amount of the current net annual premiums paid by the Company for such directors and employees, it being understood officers liability insurance (which current net annual premiums are hereby represented and agreed that warranted by the indemnification provided for in Company to be $398,000). Subject to this Section 6.05 is not prior 6.02(d), Parent or its agents shall have the right to substitute the insurance company providing the Company’s current directors’ and officers’ liability insurance policy with another financially sound insurance company of recognized reputation with an A.M. Best rating of A and a surplus of XII or in substitution for any such claims under any such policies or other agreementsbetter.
Appears in 1 contract
Samples: Merger Agreement (Verticalnet Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions By-Laws of the Surviving Corporation shall contain the provisions that are set forth, as of the date of this Agreement, in the By-Laws of IVAX pertaining to the indemnification agreements by of directors, officers, employees, fiduciaries and among the Company and its directors and certain executive officers as in effect at the Effective Time shall survive the Merger and agents, 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 the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, who at or at any time prior to the Effective Time, Time were directors, officers, employees, fiduciaries or agents of IVAX. IVAX NYCOMED shall guaranty the Company, unless such modification shall be required by Law. From and obligations of the Surviving Corporation under these provisions of the By-Laws.
(b) For a period of six years after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent IVAX NYCOMED shall cause the Surviving Company to, maintain to be maintained in effect for six (6) years from the Effective Time the current directors’ ' and officers’ ' liability insurance policies maintained by IVAX and Hafslund Nycomed (provided that IVAX NYCOMED may, and in the Company with respect to matters occurring prior to the Effective Time, including acts or omissions occurring in connection with this Agreement and the consummation event of the Transactions (the parties covered therebycancellation or termination of such policies IVAX NYCOMED shall, the “Indemnified Parties”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect as of the Effective Time; provided, that the Surviving Company may substitute therefor policies reasonably satisfactory to the indemnified parties of at least the same coverage containing terms, conditions, retentions terms and limits of liability that conditions which are no less favorable than those provided under the Company’s current policies; provided, further, advantageous) with respect to claims arising from facts or events that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance, and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In addition, the Company may and, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. If such “tail” prepaid policies have been obtained by the Company occurred prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) Subject to the terms and conditions of this This Section 6.05, from and after the Effective Time, the Surviving Company shall comply (and Parent shall cause the Surviving Company to comply) with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (A) the fact that an Indemnified Party 9.04 is or was a director, officer or employee of the Company or any of its Subsidiaries or (B) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL or any other applicable Law; provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company or entity of such consolidation or merger 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 Company, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.05.
(e) The agreements and covenants contained in this Section 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL or other applicable Law, or otherwise. The provisions of this Section 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and indemnified parties, their heirs and legal representatives, each of which personal representatives and shall be a Third Party beneficiary of the provisions of this Section 6.05. The obligations of Parent binding on IVAX NYCOMED and the Surviving Company under this Section 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified PartyCorporation and their respective successors and assigns.
(fd) Nothing in this Agreement is intended Notwithstanding anything to the contrary contained herein, the Surviving Company shall, and IVAX NYCOMED shall cause the Surviving Company to, shall be construed to or shall releaseassume and perform all obligations of IVAX arising under each Indemnification Agreement entered into, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect prior to the Company date hereof, between IVAX and certain officers and directors of IVAX.
(e) If IVAX NYCOMED or any of its Subsidiaries successors or their respective officersassigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, directors corporation or other entity, then and employeesin each such case, it being understood and agreed proper provisions shall be made so that the indemnification provided for successors and assigns of IVAX NYCOMED shall assume all of the obligations set forth in this Section 6.05 is not prior to or in substitution for any such claims under any such policies or other agreements9.04.
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Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification, advancement and exculpation provisions of the indemnification agreements by and among between the Company and its directors and certain executive officers officers, as in effect at the Effective Time Time, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of the current or former directors or officers of the Company or any of its Subsidiaries. The Surviving Company and its Subsidiaries shall (and Parent shall cause the Surviving Company and its Subsidiaries to) honor and fulfill in all respects the obligations of the Group Companies under (i) any indemnification, advancement of expenses and exculpation provision set forth in any memorandum and articles of association or comparable organizational documents of the Company or any of its Subsidiaries as in effect on the date of this Agreement, and (ii) all indemnification agreements between the Company or any of its Subsidiaries and any Indemnified Party. The memorandum and articles of association of the Surviving Company shall contain provisions no less favorable to the intended beneficiaries with respect to exculpation and indemnification of liability and advancement of expenses than are set forth in the memorandum and articles of association of the Company as in effect on the date hereof, and Parent shall cause such provisions not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by applicable Law. From and after the Effective Time, any agreement of any Indemnified Party with the Company or any of its Subsidiaries regarding exculpation or indemnification of liability or advancement of expenses shall be assumed by the Surviving Company, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect for six (6) years from the Effective Time the current directors’ and officers’ liability insurance policies maintained by the Company with respect to matters occurring prior to the Effective Time, (including for acts or omissions occurring in connection with this Agreement and the consummation of the Transactions Transactions) maintained by the Company or any of its Subsidiaries covering each current or former director or officer and any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (the parties covered therebyeach, the an “Indemnified PartiesParty”) on terms with respect to coverage and amount no less favorable to the Indemnified Parties than those in effect covered as of the Effective Time, on terms no less favorable than those of such policies in effect on the date hereof; provided, however, that the Surviving Company may substitute therefor policies of at least the same coverage containing terms, conditions, retentions and limits of liability that are no less favorable than those provided under the Company’s current policies; provided, further, that in no event shall the Surviving Company be required to expend pursuant to this Section 6.05(b6.05(b) more than an amount per year equal to 300% of current annual premiums paid by the Company for such insuranceinsurance (the “Maximum Annual Premium”), and if the cost of such insurance policy exceeds such amount, then the Surviving Company shall obtain a policy with the greatest coverage for a cost not exceeding such amount. In additionlieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.05(b), the Company may andmay, at Parent’s request, the Company shallits option, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms, conditions, retentions and limits of liability no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the CompanyCompany so long as the annual cost of such policy does not exceed the Maximum Annual Premium. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of Parent or Surviving Company under this Section 6.05(b6.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.056.05, from and after the Effective Time, the Surviving Company shall comply (comply, and Parent shall cause the Surviving Company to comply) , with all of the Company’s obligations, and each of the Surviving Company and Parent shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses): ) (i) the Indemnified Parties against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigationAction, whether civil, criminal, administrative or investigative (“Damages”), arising out of, relating to or in connection with (Ax) the fact that an Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries or (By) any acts or omissions occurring or alleged to have occurred (including acts or omissions with respect to the approval of this Agreement or the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party) prior to or at the Effective Time, to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof (true and complete copies of which shall have been delivered to Parent prior to the date hereof) and to the fullest extent permitted by the CICL CICA or any other applicable Law; , provided, that such indemnification shall be subject to any limitation imposed from time to time under applicable Law; and (ii) such persons Indemnified Parties against any and all Damages arising out of acts or omissions in such persons’ official capacity as an officer, director or other fiduciary in the Company or any of its Subsidiaries if such service was arising out of, relating to or in connection with any acts or omissions occurring or alleged to occur prior to or at the request Effective Time in such Indemnified Party’s capacity as a director, officer or for the benefit other fiduciary of the Company or any of its Subsidiaries.
(d) In the event the Company or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or Surviving Company surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or Company, the Surviving Company, or Parent, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.056.05.
(e) The agreements and covenants contained in this Section 6.05 6.05 shall be in addition to any other rights an Indemnified Party may have under the memorandum and articles of association of the Company or any of its Subsidiaries (or equivalent constitutional documents), or any agreement between an Indemnified Party and the Company or any of its Subsidiaries, under the CICL CICA or other applicable Law, or otherwise. The provisions of this Section 6.05 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and legal representatives, each of which shall be a Third Party third party beneficiary of the provisions of this Section 6.056.05. The obligations of Parent and the Surviving Company under this Section 6.05 6.05 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party without the consent of such Indemnified Party.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy or other agreement that is or has been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.05 6.05 is not prior to or in substitution for any such claims under any such policies or other agreementspolicies.
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