Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period. (b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be. (c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06. (d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 5 contracts
Samples: Master Transaction Agreement (Cig Media LLC), Master Transaction Agreement (Ion Media Networks Inc.), Master Transaction Agreement (Ion Media Networks Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the First Effective Time, the Surviving Company agrees or the Final Surviving Company, as applicable, shall, and Parent shall cause the Surviving Company or the Final Surviving Company, as applicable, to, indemnify, defend and hold harmless, and advance out-of-pocket expenses with respect to, all past and present directors and officers of the Company and its Subsidiaries (the “Indemnified Parties”) for acts or omissions occurring at or prior to the First Effective Time to the fullest extent permitted by the CICL or provided under the Company Memorandum in effect on the date hereof. Parent shall guarantee such performance by the Surviving Company or the Final Surviving Company, as applicable.
(b) From the First Effective Time and for a period of six (6) years thereafter, Parent and the Surviving Company or the Final Surviving Company, as applicable, shall maintain in effect directors’ and officers’, fiduciary and employment practices liability insurance covering acts or omissions occurring at or prior to the First Effective Time with respect to those persons who are currently covered by the Company’s directors’ and officers’, fiduciary and employment practices liability insurance policies (copies of which have been made available or delivered to Parent) with terms, conditions, retentions and levels of coverage at least as favorable as those of such current insurance coverage; provided, however, that in no event will Parent, the Surviving Company or the Final Surviving Company be required to expend in any one year an amount in excess of 300% of the annual premiums currently paid by the Company for such insurance (the “Maximum Premium”), which Maximum Premium is set forth in Section 6.10(b) of the Company Disclosure Letter; and provided, further, that, if the annual premiums for such insurance coverage exceed the Maximum Premium, Parent and the Surviving Company or the Final Surviving Company, as applicable, will be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount; and provided, further, however, that at the Company’s option in lieu of the foregoing insurance coverage, the Company may purchase, prior to the First Effective Time, six (6) year “tail” insurance coverage that provides coverage identical in all material respects to the coverage described above, provided that the Company does not pay more than the aggregate Maximum Premium.
(c) Parent and the Company agree that all rights to indemnification and exculpation from from, and advancement of expenses with respect to, liabilities for acts or omissions occurring at or prior to the First Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) and its Subsidiaries as provided in its Certificate their respective memorandum and articles of Incorporation association (or By-laws comparable organizational documents) and any indemnification or other agreements of the Company and its Subsidiaries as in effect on the date of this Agreement shall be assumed by the Surviving Company or the Final Surviving Company, as applicable, without further action, at the First Effective Time and shall survive the Mergers and shall continue in full force and effect in accordance with their terms subsequent to the Effective Timeterms. Further, the Certificate memorandum and articles of Incorporation and By-laws association of the Surviving Company after or the Effective Time Final Surviving Company, as applicable, shall contain provisions no less favorable with respect to indemnification, exculpation and advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the CompanyCompany Memorandum, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the First Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL CICL during such period.
(bd) The Company shallThis Section 6.10 shall survive the consummation of the Mergers, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if availableis intended to benefit, and shall contain substantially be enforceable by each Indemnified Party and their respective successors, heirs and representatives, shall be binding on all successors and assigns of Parent and the same coverage and amount asSurviving Company or the Final Surviving Company, as applicable, and contain terms shall not be amended without the prior written consent of the applicable Indemnified Party (including his or her successors, heirs and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorablerepresentatives), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(ce) In the event that Parent, the Surviving Company or any of the Final Surviving Company or its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation the Surviving Company or the Final Surviving Company, as applicable, or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company or at CIG’s optionthe Final Surviving Company, CIGas applicable, shall assume succeed to the obligations set forth in Section 6.09 and this Section 10.066.10. In addition, Parent and the Surviving Company or the Final Surviving Company, as applicable, shall not distribute, sell, transfer or otherwise dispose of any of their respective assets in a manner that would reasonably be expected to render Parent or the Surviving Company or the Final Surviving Company, as applicable, unable to satisfy its obligations under this Section 6.10.
(df) This The rights of the Indemnified Parties under this Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, 6.10 shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution substitute for, any other rights to indemnification or contribution that any such Person Indemnified Parties may have under the memorandum and articles of association (or comparable organizational documents) of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws, and Parent shall, and shall cause the Surviving Company or the Final Surviving Company, as applicable, to, honor and perform under all indemnification agreements entered into by contract the Company or otherwiseany of its Subsidiaries.
Appears in 4 contracts
Samples: Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (FGL Holdings), Merger Agreement (Fidelity National Financial, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article Eight of the Certificate of Incorporation and or Article V of the By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect effect, for six years from the Effective Time, if available, the D&O Insurance Policies current directors’ and officers’ liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case advantageous) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 842,575 in the aggregate), as it being understood that, if the case premium required to be paid by Parent for such policy would exceed such 200% amount, then the coverage of such policy shall be reduced to the maximum amount that may bebe obtained for a per annum premium in such 200% amount.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Chippac Inc), Merger Agreement (Chippac Inc), Agreement and Plan of Merger and Reorganization (Temasek Holdings LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification From and exculpation from liabilities for acts or omissions occurring at or prior to after the Effective Time (and Time, the Surviving Corporation shall, to an extent no less favorable than the certificate of incorporation, bylaws, indemnification agreements or other indemnification rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on as of the date of this Agreement shall continue (the “Existing Indemnification Agreements”), indemnify and hold harmless each present and former director and officer of the Company and its subsidiaries (collectively, the “Indemnified Parties”) against all costs and expenses (including, to the extent contemplated in full force the Existing Indemnification Agreements, attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and effect settlement amounts paid in accordance connection with their terms subsequent to any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time. Further), based on the Certificate of Incorporation and By-laws fact that such person is or was a director or officer of the Company after or any subsidiary of the Company and arising out of or pertaining to any action or omission occurring at or before the Effective Time (and, to the extent that the Existing Indemnification Agreements so provide, shall contain provisions no less favorable with respect to indemnification, advancement of pay any expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws advance of the Companyfinal disposition of such action or proceeding to each Indemnified Party to the fullest extent permitted under DGCL, which provisions shall not be amended, repealed or otherwise modified for a period of six years upon receipt from the Effective Time in any manner that would adversely affect the rights thereunder Indemnified Party to whom expenses are advanced of any an undertaking to repay such individuals, except as amendments may be advances if required by the DGCL during such periodunder DCGL).
(b) The Company shallSurviving Corporation or, at its AREH’s option, either (A) purchase a tail policy of AREH or its affiliate, shall add as additional insured persons under its directors’ and officers’ liability insurance which policy those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy, and the Surviving Corporation or, at AREH’s option, AREH, shall be use its reasonable best efforts to maintain such coverage in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to after the Effective Time; provided, however, that in no event shall the Company Surviving Corporation or AREH or its affiliate be required to expend pursuant to this Section 10.06(b4.16(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300100% of the current annual premiums paid by the Company for such insurance. Notwithstanding the foregoing, in lieu of providing any person coverage under a directors’ and officers’ liability insurance policy, AREH may elect (the “Election”) to indemnify such person, in which premiums event (i) such person shall have the Company represents same rights against AREH (and warrants no greater rights) that such person would have had under the Company’s directors’ and officers’ liability insurance policy in effect immediately prior to be $940,000 the Effective Time had such insurance policy been maintained in accordance with the aggregate)previous sentence and (ii) AREH will make such person whole with respect to any tax liabilities incurred by such person as a result of any such indemnification payments to the extent, as if any, that tax liabilities arising from such payments exceed any tax liabilities that would have been incurred if such payments had been made in respect of an insurance policy and related indemnification provisions had the case may beElection not been exercised.
(c) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers 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 Surviving Corporation or, at CIGAREH’s option, CIGAREH, shall assume the obligations set forth in this Section 10.064.16.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Icahn Carl C Et Al), Merger Agreement (National Energy Group Inc), Merger Agreement (American Real Estate Partners L P)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the memorandum and articles of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six (6) years from the Effective Time, if available, the D&O Insurance Policies 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 (provided the parties covered thereby, the “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.04(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums 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 lieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.04, the Company represents may and, at THL’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms and warrants conditions no less advantageous to be $940,000 in the aggregate), Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company so long as the case may beannual 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 THL 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 THL or Surviving Company under this Section 6.04(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.04, from and after the Effective Time, the Surviving Company shall comply with all of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses) the 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 Action (“Damages”), arising out of, relating to or in connection with (i) the fact that such person is or was a director or officer of the Company or such Subsidiary or (ii) any acts or omissions occurring or alleged to have occurred 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 and to the fullest extent permitted by the Companies Law or any other applicable Law, 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.
(d) A person seeking indemnification in accordance with Section 6.04(c) or applicable agreement or document providing for such indemnification shall use reasonable best 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 6.04(d) and acknowledges in writing that it will indemnify the person seeking indemnification with respect to the applicable matter, 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 its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation 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 CIGTHL’s option, CIGTHL, shall assume the obligations set forth in this Section 10.066.04.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.04 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.04.
(g) Nothing in addition 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 their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.04 is not prior to or in substitution for, any other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 3 contracts
Samples: Plan of Merger (Sogou Inc.), Merger Agreement (Sogou Inc.), Merger Agreement (Sohu.com LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor Bylaws of the current or former directors or officers Surviving Corporation shall contain the respective provisions that are set forth, as of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue Agreement, in full force and effect in accordance with their terms subsequent to the Effective Time. Further, Article Nine of the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who at or at any time prior to the Effective Time were directors, officers, employees, fiduciaries or agents of the Company (or their estates or personal representatives), unless such individuals, except as amendments may modifications shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for For a period of six years from after the Effective Time, if available, and the Surviving Corporation shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, current directors' and officers' liability insurance policies maintained by the D&O Insurance Policies Company (provided that the Surviving Corporation may substitute therefor policies of at least the same substantially similar coverage containing terms and conditions that are not on the whole materially less favorable), in either case ) with respect to matters occurring claims arising from facts or events that occurred prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300125% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be approximately $940,000 278,000 per year in the aggregate), as ) (the case may be"Maximum Premium") unless the directors agree to reimburse the Surviving Corporation in full for the amount by which the annual premium exceeds the Maximum Premium.
(c) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or Surviving Corporation or, at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Hub International LTD), Merger Agreement (Hub International LTD), Merger Agreement (Kaye Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights certificate of incorporation and by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing set forth in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and the Company By-laws of on the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companydate hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at any time prior to the Effective Time were officers, directors or employees of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated hereby), unless such individuals, except as amendments may be modification is required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six (6) years from the Effective Time, if available, Time directors' and officers' liability insurance covering those Persons who are currently covered by the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing Company's directors' and officers' liability insurance policy on terms and conditions that are not materially less favorable), in either case with respect comparable to matters occurring prior to the Effective Timesuch existing insurance coverage; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.6(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300150% of current annual premiums paid by the Company for such insurance and; provided, further, that if the annual premiums exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available for an annual cost not exceeding such amount. In lieu of the foregoing, the Surviving Corporation shall pay at or prior to the Closing for tail insurance coverage for said directors and officers for said six (which premiums 6) year period if such coverage is available and on the terms and at the costs specified in Section 7.6(b) of the Company represents and warrants to be $940,000 in the aggregate), as the case may beDisclosure Schedule.
(c) In addition to the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth rights provided for in this Section 10.06.
7.6 and not in limitation thereof (d) This but without in any way limiting or modifying the obligations of any insurance carrier contemplated by Section 10.06 7.6(b)), Parent shall continue in effect subsequent to honor all indemnification obligations under the Effective TimeCompany Certificate of Incorporation, is intended to benefit the Company By-laws and any indemnification agreements between the Company and each Indemnified D&Oany Person (all copies of which have been previously provided to Parent) as same exist, shall be binding on all successors and assigns if at all, as of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisedate hereof.
Appears in 3 contracts
Samples: Merger Agreement (Richton International Corp), Merger Agreement (FRS Capital Co LLC), Merger Agreement (Deere & Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The For a period of six years from and after the Effective Time, Parent and the Surviving Corporation shall indemnify, advance expenses to, and hold harmless all past and present officers and directors of the Company agrees that all rights (“Indemnified Persons”) to indemnification the fullest extent permitted by law and exculpation from liabilities 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 (and rights for Time; provided, however, in the case of advancement of expenses) now existing in favor of , any person to whom expenses are advanced provides an undertaking, to the current or former directors or officers of extent required by the Company (the “Indemnified D&Os”) as provided in its DGCL, to repay such advance if it is ultimately determined that such person is not entitled to indemnification. The Certificate of Incorporation or By-laws and any indemnification or other agreements 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 on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall 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 any individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company, unless such individuals, except as amendments may be a modification is required by the DGCL during such periodLaw.
(b) The Company shallshall negotiate and purchase “tail” insurance coverage from the Company’s existing directors and officers liability insurers, at its optionor from other insurers, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect that provides for a period of six (6) years from the Effective Time, if available, that is no less favorable in both amount and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, of coverage than the Company’s existing directors and officers liability insurance programs, or if substantially equivalent insurance coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if is not available, the best available coverage (“D&O Insurance”); provided however that the aggregate cost for the purchase of such D&O Insurance Policies (provided that for the Surviving Corporation may substitute therefor policies of at least the same entire six (6) year tail coverage containing terms and conditions that are period) shall not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) exceed more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300250% of current annual premiums the aggregate premium paid by the Company for such the existing directors and officers liability and fiduciary liability insurance (which premiums program, provided, further, that should the cost of D&O Insurance exceed the 250% cap, the Company represents shall instead purchase the best available coverage for 250% of the aggregate premium paid by the Company for the existing directors and warrants to be $940,000 in the aggregate), as the case may beofficers liability and fiduciary liability insurance program.
(c) In If the event the Company Surviving Corporation or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or 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 Person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, Surviving Corporation shall assume all of the obligations of the Surviving Corporation set forth in this Section 5.9.
(d) The obligations set forth in this Section 10.06.
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 (dand their heirs and representatives) This Section 10.06 shall continue in effect subsequent to without the Effective Time, prior written consent of such affected Indemnified Person or other person who is intended to benefit a beneficiary under the Company D&O Insurance (and each Indemnified D&O, shall be binding on all successors their heirs and assigns representatives). Each of the Company, Indemnified Persons or other persons who are beneficiaries under the D&O Insurance (and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 their heirs and representatives) are intended to be for third party beneficiaries of this Section 5.9, with full rights of enforcement against the benefit of, Surviving Corporation and will Parent as if a party thereto. The rights of the Indemnified Persons and other persons who are beneficiaries under the D&O Insurance (and their heirs and representatives) under this Section 5.9 shall be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights that such persons may have under the charters, bylaws or other equivalent organizational documents, 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).
(e) 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 for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.9 is not prior to or contribution that in substitution for any such Person may have by contract or otherwiseclaims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (AMICAS, Inc.), Merger Agreement (Merge Healthcare Inc), Merger Agreement (AMICAS, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Purchaser and the Surviving Corporation shall indemnify and hold harmless all present directors, officers and employees (in all of their capacities) of the Company agrees that all rights (such Persons, the "Indemnified Parties") to indemnification the same extent such Persons are indemnified as of the date hereof by the Company pursuant to the Company's certificate of incorporation and exculpation from liabilities bylaws as in existence on the date hereof to the extent permitted by law.
(b) The Purchaser and the Surviving Corporation shall maintain for a period of at least six (6) years after the Effective Time coverage under the Company's directors' and officers' liability insurance policies as in effect on the date hereof for acts or omissions occurring at or prior to the Effective Time ("D&O Insurance"), which shall be substantially similar to the insurance policies provided by the Purchaser to its existing officers and rights for advancement directors as of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 ; provided that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation Purchaser may substitute therefor policies with a reputable insurer of at least the same comparable credit quality of substantially similar coverage and amounts containing terms and conditions that are not materially no less favorable), advantageous in either case with respect to matters occurring prior the aggregate to the Effective Time; providedIndemnified Parties, however(B) if the existing D&O Insurance expires or is canceled during such period, that the Purchaser and the Surviving Corporation will use their commercially reasonable efforts to obtain substantially similar D&O Insurance from a reputable insurer of comparable credit quality, and (C) in no event shall the Company Purchaser or the Surviving Corporation be required to expend more than $15,750 in the aggregate to maintain or procure D&O Insurance pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be5.2.
(c) The provisions of this Section 5.2 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 other rights such Indemnified Party may have under any other indemnification arrangement.
(d) In the event the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, then and in each such either case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, Surviving Corporation shall assume the obligations set forth in this Section 10.065.2.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Artistdirect Inc), Merger Agreement (Artistdirect Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company Purchaser Parties (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties in effect on the date hereof and disclosed in Schedule 7.9(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Reincorporation Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanyPurchaser Parties to the extent permitted by applicable Law. The provisions of this Section 7.9 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period of six years from the Effective TimeClosing Date, for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.9(b) more than $2,500,000 as a premium for an aggregate amount in excess of 200% of the tail policy or an amount per year equal to 300% of current annual premiums annum the Parent paid by the Company for such insurance (in its last full fiscal year, which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations amount is set forth in this Section 10.06.
(d) This Section 10.06 Schedule 7.9(b). Parent shall continue cause such D&O Tail Insurance to be maintained in effect subsequent to the Effective Timefull force and effect, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Companyfor its full term, and shall be enforceable by cause the Indemnified D&O. The provisions of this Section 10.06 are intended other Purchaser Parties to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisehonor all obligations thereunder.
Appears in 2 contracts
Samples: Business Combination Agreement (Ace Global Business Acquisition LTD), Merger Agreement (Tottenham Acquisition I LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company Acquiror (the “D&O Indemnified D&OsPersons”) as provided its Organizational Documents, in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and the Acquiror in effect on the date hereof that were provided to Group Parties, shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the Effective Timeextent permitted by applicable Law. FurtherFor a period of six (6) years after the Closing Date, the Certificate of Incorporation and By-laws Acquiror shall cause the Organizational Documents of the Company after the Effective Time shall Acquiror to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior Acquiror to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid extent permitted by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. applicable Law. The provisions of this Section 10.06 6.12 shall survive the Closing and are intended to be for the benefit of, and will shall be enforceable by, each of the D&O Indemnified D&OPersons and their respective heirs and representatives.
(b) The Acquiror shall, his or her heirsshall cause its Affiliates to, obtain for a “tail” insurance policy that provides coverage for up to a six-year period from the Closing Date, for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the Acquiror’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided that the premium of the D&O Tail Insurance shall be paid out of the funds in the Trust Account; provided further that in no event shall the Acquiror be required to expend for such policies pursuant to this Section 6.12(b) an annual premium amount in excess of 200% of the amount per annum the Acquiror paid in its last full fiscal year, which amount is set forth in Schedule 6.12(b). The Acquiror shall cause such D&O Tail Insurance to be maintained in full force and effect, for its full term, and his cause its Affiliates to honor all obligations thereunder.
(c) On the Closing Date, the Acquiror shall enter into customary indemnification agreements reasonably satisfactory to all Acquiror Indemnitees, which indemnification agreements shall continue to be effective following the Closing.
(d) TAG hereby agrees to indemnify and hold harmless each of the individuals set forth on Schedule 6.12(d) (the “Acquiror Indemnitees”) against and in respect of any and all Losses incurred or her representatives sustained by the Acquiror Indemnitees as a result of or in connection with any breach, inaccuracy or nonfulfillment or the alleged breach, inaccuracy or nonfulfillment of any of the representations, warranties and are post-Closing covenants of the Group Parties contained herein or in addition toany of the Additional Agreements or any certificate or other writing delivered pursuant hereto, and provided that the aggregate amount of all Losses for which the Group Parties shall be liable pursuant to Section 6.12(a) shall not in substitution forexceed US$2,000,000. Any indemnification payment hereunder shall take into account any proceeds of the D&O Tail Insurance or other third party reimbursement actually received. In the event that a recovery with respect to any Losses has been obtained by the Acquiror Indemnitees, then a refund equal to the aggregate amount of the recovery shall be made promptly to TAG or its Affiliates (as directed by TAG). For the avoidance of doubt, any other rights to indemnification recovery by one or contribution that more Acquiror Indemnitees under Article X of this Agreement shall preclude the making of any duplicative claim by such Person may have by contract or otherwiseAcquiror Indemnitees under this Section 6.12(d).
Appears in 2 contracts
Samples: Business Combination Agreement (AGBA Group Holding Ltd.), Business Combination Agreement (AGBA Acquisition LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the SPAC and the Company Group (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the SPAC or the Company Group, as the case may be, in effect on the date hereof and disclosed in Schedule 7.7(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time. Further, the Certificate of Incorporation SPAC and By-laws the Company shall cause the Organizational Documents of the SPAC and the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanySPAC to the extent permitted by applicable Law. The provisions of this Section 7.7 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a “tail” insurance policy that provides coverage for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) for the period commencing on the Closing Date to the sixth anniversary of six years from the Effective TimeClosing Date, that is substantially equivalent to and in any event not less favorable in the aggregate than the SPAC’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for the tail policy or an amount per year equal to in excess of 300% of current annual premiums the amount per annum the SPAC paid by the Company for such insurance (in its last full fiscal year, which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations amount is set forth in this Section 10.06.
(d) This Section 10.06 Schedule 7.7(b). The Surviving Corporation shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended cause such D&O Tail Insurance to be maintained in full force and effect, for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseits full term.
Appears in 2 contracts
Samples: Merger Agreement (Brilliant Acquisition Corp), Merger Agreement (Nukkleus Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers of the Surviving Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnificationexculpation, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in the Certificate memorandum and articles of Incorporation and By-laws association of the CompanyCompany in effect as of 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 affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors or officers of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shallshall maintain in effect for six (6) years from the Effective Time, at its option, either (A) purchase a tail policy of the current directors’ and officers’ liability insurance which shall be in effect for a period policies maintained by the Company as of six years from the date hereof with respect to matters occurring prior to the Effective Time, if available, including acts or omissions occurring in connection with this Agreement and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in consummation of the aggregate, than Transactions (the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableparties covered thereby, the D&O Insurance Policies (provided “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300250% of current annual premiums paid by the Company for such insurance (which premiums insurance. In addition, the Company represents 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 warrants conditions no less advantageous to be $940,000 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 aggregate)respective obligations thereunder, as the case may beand 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 with all of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses) the 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 (i) the fact that such person is or was a director or officer of the Company or such Subsidiary or (ii) any acts or omissions occurring or alleged to have occurred 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; provided that this Section 6.05(c) is not intended to confer any new or additional rights on any such person, 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, the Company’s and its Subsidiaries’ respective organizational and governing documents in effect as of the date hereof, or any agreements set forth on Section 6.05(c) of the Company Disclosure Schedule in effect as of the date of this Agreement.
(d) A person seeking indemnification in accordance with Section 6.05(c) 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. The right of the Surviving Company (or a Subsidiary nominated by it), if any, to participate in and/or assume the defense of any Action in respect of which indemnification is sought under Section 6.05(c) shall be determined in accordance with the applicable agreement or document providing for such indemnification.
(e) In the event the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(g) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 2 contracts
Samples: Merger Agreement (Alibaba Group Holding LTD), Merger Agreement (AutoNavi Holdings LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The For a period of six (6) years commencing on the Closing Date, Purchaser shall use its reasonable best efforts to cause the Company agrees that and its subsidiaries, and their respective successors and assigns, to comply with and honor all rights to advancement of expenses, exculpation or indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Closing, now existing in favor of the any current or former officers or directors (unless required by Law or officers with the consent of each affected individual) (each an “Indemnified Person”), to the extent provided for in the Company and its subsidiaries’ respective Organizational Documents.
(b) For a period of at least six (6) years commencing on the Closing Date, Purchaser shall use its reasonable best efforts to cause the Company to purchase and maintain an insurance and indemnification policy (the “Indemnified D&OsD&O Insurance”) as provided in its Certificate for the benefit of Incorporation or By-laws each such person covered by the Company’s officers’ and any indemnification or other agreements of the Company as directors’ liability insurance policies in effect on as of the date of this Agreement (the “Existing D&O Policy”). Such D&O Insurance shall continue in full force and effect in accordance with their terms subsequent (i) insure such persons for acts or omissions occurring on or prior to the Effective Time. Further, the Certificate of Incorporation Closing and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(bii) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageousfavorable than those of the Existing D&O Policy; provided that notwithstanding the foregoing, in if the aggregatepremium for such coverage exceeds 150% of the premium payable by the Company under the Existing D&O Policy for the year ended December 31, than 2018, then the Company shall only be required to offer the coverage provided in the D&O Insurance Policies or available for such 150% premium amount, and no greater coverage. The Company may satisfy its obligations under this Section 5.05(b) by purchasing a “tail” policy. Such “tail” policy shall (Bi) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies have a claims period of at least six (6) years commencing on the same coverage containing Closing Date, (ii) insure each person covered by the Existing D&O Policy for acts and omissions occurring at or prior to the Closing, and (iii) subject to the immediately preceding sentence, contain terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more favorable than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns those of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06Existing D&O Policy.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Share Purchase Agreement (Ctrip Com International LTD), Share Purchase Agreement (Naspers LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement certificate of expenses) now existing in favor incorporation of the current or former directors or officers Surviving Corporation and each of the Company Subsidiaries shall (the “Indemnified D&Os”i) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, exculpation and advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate certificate of Incorporation incorporation and By-laws bylaws of the CompanyCompany or the applicable Subsidiary, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who, at or at any time prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company or the Subsidiaries, unless such individuals, except as amendments may modification shall be required by law; provided, however, that if any claim or claims are asserted against any individual entitled to the DGCL during protections of such provisions within such six-year period, such provisions shall not be modified until the final disposition of any such claims, and (ii) with respect to the Surviving Corporation, contain provisions no less favorable with respect to indemnification for matters occurring from and after the Effective Time than are set forth in Parent’s memorandum of association or bye-laws, as of the date hereof.
(b) The Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the extension of (i) the Side A coverage part (directors’ and officers’ liability) of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at its option, either (A) purchase a tail policy of least six years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance which shall be in effect for a period and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageousliability that are not, in the aggregate, than less favorable as the coverage provided Company’s existing policies with respect to any matter claimed against a director or officer of the Company or any of the Subsidiaries by reason of his or her serving in such capacity that existed or occurred at or prior to the D&O Insurance Policies Effective Time (including in connection with this Agreement or (B) use its reasonable best efforts the transactions or actions contemplated hereby). If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies maintained by the Company as of the date hereof (provided that except the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not not, in the aggregate, materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend in the aggregate pursuant to this Section 10.06(b7.07(b) more than $2,500,000 as a premium for the tail policy or an annual amount per year equal to 300in excess of 200% of current the annual premiums currently paid by the Company (which current amount is set forth in Section 7.07(b) of the Company Disclosure Schedule) for such insurance; provided further, that, if the amount of the annual premiums necessary to maintain or procure such insurance (which premiums coverage exceeds such maximum amount, the Company represents Surviving Corporation shall maintain or procure, for such six-year period, the most advantageous policies of directors’ and warrants officers’ insurance obtainable for an annual premium equal to be $940,000 in that maximum amount from an insurance carrier with the aggregate), as same or better credit rating than the case may beCompany’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance.
(c) In the event the Company Company, the Surviving Corporation, any Subsidiary or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers 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 Company, the Surviving Corporation or such Subsidiary, as the case may be, or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.067.07.
(d) This The provisions of this Section 10.06 shall continue in effect subsequent to the Effective Time, is 7.07 are intended to be for the benefit of, and shall be enforceable by, each present and former director, officer or employee (an “Indemnified Person”) of the Company and each Indemnified D&Oor any of the Subsidiaries, his or her heirs, executors or similar representatives, shall be binding on all successors and assigns of Parent, the Company, the Surviving Corporation and the Subsidiaries and shall not be enforceable by amended in a manner that is adverse to the Indemnified D&O. The provisions Persons (including their successors, assigns and heirs) without the consent of this Section 10.06 are intended to be for the benefit ofIndemnified Person (including the successors, assigns and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise) affected thereby.
Appears in 2 contracts
Samples: Merger Agreement (Bunge LTD), Merger Agreement (Corn Products International Inc)
Directors’ and Officers’ Indemnification and Insurance. Acquiror agrees that for the entire period from the Effective Time until six years after the Effective Time, (a) The Acquiror will cause the Surviving Corporation to, indemnify and hold harmless, to the extent provided in the certificate of incorporation and bylaws of Company agrees that all rights in the form provided to indemnification and exculpation from liabilities for acts or omissions occurring at Acquiror prior to the date of this Agreement, each person who on or prior to the Effective Time (and rights for advancement was a director or officer of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors Subsidiaries with respect to all acts or assigns omissions by such person in his or her capacity as such; (ib) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit ofAcquiror will, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition cause Surviving Corporation to, maintain Company’s current directors’ and officers’ insurance and indemnification policy and related arrangements, or a substantially equivalent policy and related arrangements, subject in either case to terms and conditions substantially as advantageous to the present and former Company directors and officers of Company and any of its Subsidiaries as those contained in the policy and arrangements in effect on the date hereof and disclosed to Acquiror, for all present and former directors and officers of Company and any of its Subsidiaries covering claims made and insurable events with respect to matters arising or omissions occurring before, on, or existing at, the Effective Time (provided that Surviving Corporation will not be required to maintain such policy except to the extent that the aggregate annual cost of maintaining such policy is not in substitution forexcess of one hundred and fifty percent (150%) of the current annual cost, any other rights in which case Surviving Corporation shall maintain such policies up to indemnification or contribution that any such Person may have by contract or otherwise.an annual cost of one hundred and fifty percent (150%) of the current annual cost); and (
Appears in 2 contracts
Samples: Merger Agreement (Titan Corp), Merger Agreement (Lockheed Martin Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that Parent and the Surviving Corporation shall cause all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation now existing in favor of any present or former director, officer or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws employee of the CompanyCompany or any of its Subsidiaries, which provisions shall not be amendedContinuing Directors and the fiduciaries of any Company Benefit Plans (the “Indemnified Parties”) as provided in (i) the Company Organizational Documents or (ii) otherwise in effect as of the date hereof as disclosed in Section 6.8(a) of the Company Disclosure Letter or entered into after the date hereof in accordance with this Agreement, repealed or otherwise modified in each case to survive the Offer and the Merger and to continue in full force and effect without any modification that would affect materially and adversely the rights thereunder of such Indemnified Parties for a period of not less than six years from after the Effective Time or, if longer, for such period as is set forth in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodapplicable document.
(b) The Company shall, Parent and the Surviving Corporation shall maintain in effect for at its option, either (A) purchase a tail policy least six years after the Effective Time the current policies of directors’ and officers’ liability insurance maintained by the Company (including such coverage held for the benefit of members of the litigation special committee of the Board of Directors and coverage obtained for members of such committee, and for Continuing Directors, in each case for the period between the Offer Acceptance Time and the Effective Time) or policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this Agreement) so long as Parent and the Surviving Corporation are not required to pay a premium in excess of 300 % of the last annual premium paid by the Company for such insurance before the date of this Agreement (such 300% amount being the “Maximum Premium”). If the Surviving Corporation is 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 6.8(b), before the Effective Time, the Company shall be entitled to purchase one or more six (6) year “tail” prepaid directors’ and officers’ liability insurance policies covering the matters described in this Section 6.8(b) and for the benefit of the persons who, as of the date of this Agreement and as of the Closing Date, are covered by the directors’ and officers’ liability insurance policy maintained by the Company (or are obtained for any period between the Offer Acceptance Time and the Effective Time, as described above), and, if the Company elects to purchase such policies before the Effective Time, then Parent and the Surviving Corporation’s obligations under this Section 6.8(b) shall be satisfied so long as Parent and the Surviving Corporation cause such policies to be maintained in effect for a period of six years from following the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) The covenants contained in this Section 6.8 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(d) In the event that Parent or the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision Parent and the Surviving Corporation shall be made take all necessary action so that the successors and or assigns of Parent or the Company or at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume succeed to the obligations set forth in this Section 10.066.8.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect granting the same rights to indemnification, advancement of expenses and exculpation of former or present directors and officers than indemnification that are presently set forth in Article 7 of the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy Each of directors’ Parent and officers’ liability insurance which the Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation 38 34 be required to expend pursuant to this Section 10.06(b7.07(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 85,500 in the aggregate, which premium has been calculated by dividing the aggregate two year premium by two), as (such 200% amount, the case may be"Maximum Premium"). If such insurance coverage cannot be obtained, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent shall cause the Surviving Corporation (which, for purposes of this Section 7.07(b), shall include the provision of necessary funds to the Surviving Corporation, if necessary) to maintain the most advantageous policies of directors' and officers' insurance obtainable for an annual premium equal to the Maximum Premium; provided further, that if such insurance coverage cannot be obtained at all, Parent shall purchase all available run-off insurance policies with respect to pre-existing insurance in an amount that, together with all other insurance purchased pursuant to this Section 7.07(b), does not exceed the Maximum Premium.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.067.07.
(d) This From and after the consummation of the Offer, Parent shall cause the Surviving Corporation (which, for purposes of this Section 10.06 7.07, shall continue in effect subsequent include the provision of necessary funds to the Surviving Corporation, if necessary) to indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, is intended to benefit an officer, director, employee or agent (the "Indemnified Party") of the Company or any of its Subsidiaries against all losses, claims, damages, liabilities, costs and each Indemnified D&Oexpenses (including attorneys' fees and expenses), shall be binding on all successors judgments, fines, losses, and assigns amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "Claim") to the extent that any such Claim is based on, or arises out of, (i) the fact that such person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) this Agreement, or any of the transactions contemplated hereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing, or occurring prior to or at the Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Effective Time, to the full extent permitted under Delaware law or the Company's Certificate of Incorporation, By-laws or indemnification agreements in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any action or suit. Without limiting the foregoing, in the event any Indemnified Party becomes involved in any capacity in any Claim of the type described above, then from and after consummation of the Offer, Parent shall be enforceable by cause the Indemnified D&O. The provisions Company (or the Surviving Corporation if after the Effective Time) (which, for purposes of this Section 10.06 are intended 7.07, shall include the provision of necessary funds to be for the benefit ofSurviving Corporation, if necessary) to periodically advance to such Indemnified Party its legal and will be enforceable byother expenses (including the cost of any investigation and 39 35 preparation incurred in connection therewith), each subject to the provision by such Indemnified D&O, his or her heirs, and his or her representatives and are Party of an undertaking to reimburse the amounts so advanced in addition to, and the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseentitled thereto.
Appears in 2 contracts
Samples: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless all past and present officers and directors of the Company agrees that all rights 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 the Company and exculpation from liabilities its directors and 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 (Time, and rights for advancement of expenses) now existing in favor of Parent shall guarantee such performance by the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Surviving Corporation. The Certificate of Incorporation or By-laws and any indemnification or other agreements 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 Certificate of Incorporation and the Company Bylaws as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall 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 any individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company, unless such individuals, except as amendments may be a modification is required by the DGCL during such periodLaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for For a period of six years from the Effective Time, if available, and Parent shall contain substantially cause the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts Surviving Corporation to maintain in effect (or Parent may instead elect to maintain pursuant to Parent's policy or policies) for six years from the Effective Time, if available, benefit of the D&O Insurance Policies (provided Company's current directors and officers an insurance and indemnification policy that the Surviving Corporation may substitute therefor policies of at least the same provides coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters for acts or omissions occurring prior to the Effective TimeTime 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 no event the Surviving Corporation shall the Company not be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a pay an annual premium for the tail policy or an amount per year equal to 300such insurance in excess of 200% of current the last annual premiums paid by prior to the Company for such insurance date hereof (which premiums the Company represents and warrants has disclosed to be $940,000 in the aggregateParent), but in such case shall purchase as the case may bemuch coverage as possible for such amount.
(c) In This Section 5.10 shall survive the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns consummation of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective TimeMerger, is intended to benefit the Company Company, the Surviving Corporation and each Indemnified D&Oindemnified party, shall be binding on all successors and assigns of the CompanySurviving Corporation and Parent, and shall be enforceable by the Indemnified D&O. indemnified parties. The provisions of this Section 10.06 5.10 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&Oindemnified party, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Corixa Corp), Merger Agreement (Smithkline Beecham Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate Articles of Incorporation and By-laws Bylaws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently those set forth in the Certificate Company's Articles of Incorporation and By-laws of the CompanyBylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Parent shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time directors' and officers' liability insurance covering those persons who are currently covered on the D&O Insurance Policies date of this Agreement by the current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation Parent may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable)not, in either case the aggregate, less favorable to any beneficiary thereof) with respect to matters existing or occurring prior to the Effective Time; provided, however, that in no event shall the Company Parent be required to expend pursuant to this Section 10.06(b7.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance; provided further, however, that, if the amount of premium necessary to maintain or procure such insurance (which premiums coverage exceeds such maximum amount, Parent shall maintain or procure, for such six-year period, the Company represents most advantageous policies of directors' and warrants officers' insurance obtainable for a premium equal to be $940,000 that maximum amount. Nothing contained in this Section 7.06(b) or otherwise in this Agreement is intended to or shall relieve any of the Company's existing insurance carriers from any obligations that such carriers now have or may in the aggregate)future have relating to the Company, as the case may beits Subsidiaries and any of their respective officers and directors.
(c) In addition to the other rights provided for in this Section 7.06 and not in limitation thereof (but without in any way limiting or modifying the obligations of any insurance carrier contemplated by Section 7.06(b) of this Agreement), for six years from and after the Effective Time, Parent shall, to the fullest extent permitted by the MGBCL as of the date hereof (assuming the MGBCL were applicable), indemnify and hold harmless (and release from any liability to the Surviving Corporation or any of their respective subsidiaries) the persons who, at or prior to the Effective Time, were officers or directors of the Company or any Subsidiary or served at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (the "Indemnitees") against all expenses (including reimbursement for reasonable fees and expenses incurred in advance of the final disposition of any action, suit or proceeding), losses, claims, damages, judgments, fines and amounts paid in settlement that are actually and reasonably incurred by the Indemnitee in connection with any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, that related to an event, act or omission which occurred prior to the Effective Time by reason of the fact that such person was at or prior to the Effective Time a director or officer of the Company or any of its current or former Subsidiaries (collectively, an "Indemnifiable Claim"). In the event any Indemnifiable Claim is asserted or made within such six-year period, all rights to indemnification shall continue until such claim is disposed of or all judgments, orders, decrees or other rulings in connection with such claim are fully satisfied.
(d) In addition to the other rights provided for in this Section 7.06, and not in limitation thereof, the Surviving Corporation, Parent and the Company agree that all individual indemnity agreements between the Company and any Indemnitees, as in effect on the date hereof, set forth in Section 4.18 or Section 4.20 of the Disclosure Schedule, copies of which have been provided to Parent prior to the date hereof, shall survive the Effective Time and continue in full force and effect in accordance with their terms.
(e) The provisions of this Section 7.06 will survive the Effective Time and are intended for the benefit of, and will be enforceable by, each Indemnitee and his or her heirs and representatives. Parent will pay or cause to be paid all expenses, including reasonable fees and expenses of legal counsel, that an Indemnitee may incur in enforcing the indemnity and other obligations provided for in this Section 7.06 (subject to reimbursement if the Indemnitee is subsequently determined not to be entitled to indemnification under Section 7.06).
(f) In the event Parent or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers 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 at CIG’s option, CIG, Parent shall assume the obligations set forth in this Section 10.067.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Labone Inc/)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions (collectively, "Indemnification Provisions") no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article 8 of the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who at the Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such period.
(b) The Company shalllaw. Parent hereby agrees that, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, it shall absolutely and unconditionally guarantee the prompt performance and satisfaction of all obligations of the Surviving Corporation under the Indemnification Provisions.
(b) Parent and the Surviving Corporation each shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that Parent and the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that which are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that if the existing policies expire, are terminated or canceled during such period Parent or the Surviving Corporation will obtain substantially similar policies. Notwithstanding the foregoing, in no event shall Parent or the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.07(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 232,000 in the aggregate); provided, as the case may be.
(c) In however, that, in the event the Company of an expiration, termination or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity cancellation of such consolidation current policies, Parent 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 the Surviving Corporation shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth required to obtain as much coverage as is possible under substantially similar policies for $464,000 in this Section 10.06aggregate annual premiums.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Environmental Systems Products Inc), Merger Agreement (Wellman North America Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees Xxxxxx, Merger Sub and Merger Sub 2 agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of any Person who was or becomes prior to the current Effective Time a director, officer or former directors employee of the Company, including any person who is or officers was serving at the request of the Company as an officer, director or employee of a Subsidiary of the Company (the “D&O Indemnified D&OsParties”) as provided in its Certificate the Company Charter Documents or in the Charter Documents of Incorporation or By-laws and any indemnification or other agreements Subsidiary of the Company (in each case, as in effect on the date of this Agreement Agreement) shall survive the Mergers and shall continue in full force and effect in accordance with their terms subsequent to the Effective Timeterms. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for For a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies shall, and Parent shall cause the Surviving Corporation to, (i) cause the Surviving Corporation’s Charter Documents and the Charter Documents of at least any Subsidiary of the same coverage containing terms and conditions that are not materially less favorable), in either case Company to contain provisions with respect to matters occurring indemnification and exculpation of, and advancement of expenses to, D&O Indemnified Parties that are at least as favorable to such D&O Indemnified Parties, in all material respects, as the indemnification, exculpation and advancement of expenses provisions contained in the Company Charter Documents, as applicable, as in effect on the date of this Agreement and (ii) maintain any indemnification agreements of the Company and its Subsidiaries with any D&O Indemnified Party existing prior to the date of this Agreement and set forth on Section 5.10 of the Company Disclosure Letter on the terms set forth in such agreements.
(b) In addition to the other rights provided for in this Section 5.10 and not in limitation thereof, at or prior to the Effective Time, the Company shall, with Parent’s prior written consent (not to be unreasonably withheld), purchase a six year “tail” policy with terms, conditions, and coverage that are no less favorable than the terms, conditions and coverage provided to the D&O Indemnified Parties under the Company’s existing policies as of the date of this Agreement (the “Tail Policy”). Parent shall bear the cost of such Tail Policy; providedprovided that, however, that in no event shall the Company Parent be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium pay for the tail policy or Tail Policy an amount per year equal to 300annum of the Tail Period in excess of 250% of the current annual premiums premium paid by the Company for such insurance (which premiums insurance. The Surviving Corporation and Parent shall cause the Company represents and warrants Tail Policy to be $940,000 maintained in full force and effect, for its full term; provided that, if the aggregate)Tail Policy becomes unavailable, as Parent shall cause the case may beSurviving Corporation to obtain the greatest coverage available for a cost not exceeding an annual premium equal to the foregoing maximum premium.
(c) The covenants contained in this Section 5.10 shall survive the consummation of the Mergers and are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and assigns and shall not be deemed exclusive of any other rights to which any such Person is entitled, whether pursuant to Law, contract or otherwise.
(d) In the event that Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or engages in any division transaction, conversion or redomestication or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper adequate provision shall be made so that the successors and or assigns or transferees of Parent or the Company or at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume the obligations with respect to indemnification, exculpation and advancement of expenses to the D&O Indemnified Parties as set forth in this Section 10.065.10.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Tempur Sealy International, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The For six (6) years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor and fulfill in all respects the obligations of the Company agrees that and its Subsidiaries under their respective certificates of incorporation and bylaws (and other similar organizational documents) and all rights to indemnification agreements for indemnification, exculpation of liability or advancement of expenses, in effect as of the date hereof between the Company or any of its Subsidiaries and exculpation from liabilities for acts any of their respective current or omissions occurring at former directors and officers or any person who becomes a director or officer prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&OsParties”). For six (6) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to years after the Effective Time. Further, Parent shall cause the Certificate certificate of Incorporation incorporation and By-laws bylaws of the Company after the Effective Time shall Surviving Corporation and its Subsidiaries to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former or present directors and officers of the Company and its Subsidiaries than are presently set forth in the Certificate certificate of Incorporation incorporation and By-laws bylaws 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 any such individuals, except as amendments may be required by the DGCL during such periodCompany and its Subsidiaries.
(b) The Company shallFor a period of six (6) years after the Effective Time, at its option, either (A) purchase a tail policy of Parent and the Surviving Corporation shall maintain in effect the Company’s current directors’ and officers’ liability insurance which shall be (“D&O Insurance”) in effect for a period respect of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies acts or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of omissions occurring at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring or prior to the Effective Time, covering each person covered by the D&O Insurance immediately prior to the Effective Time, on terms with respect to the coverage and amounts no less favorable than those of the D&O Insurance in effect on the date of this Agreement; provided, however, that the Surviving Corporation may, at its option, substitute therefor policies of Parent, the Surviving Corporation or any of their respective Subsidiaries containing terms with respect to coverage and amounts no less favorable to such persons than the D&O Insurance, provided further, however, that in no event shall the Company be required to expend pursuant to satisfying its obligations under this Section 10.06(b) more than $2,500,000 as a premium for 6.13(b), Parent and the tail policy or an amount per year equal Surviving Corporation shall not be obligated to 300% of current pay annual premiums in excess of two hundred percent (200%) of the amount paid by the Company for coverage for its last full fiscal year (such insurance two hundred percent (200%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be $940,000 as set forth in Section 6.13 of the Company Disclosure Letter), provided further that if the annual premiums of such 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. 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 (the “Tail Policy”) on the D&O Insurance on terms and conditions no less favorable, in the aggregate), than the D&O Insurance and for an amount not to exceed three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year. In the event that the Company does not purchase the Tail Policy, Parent may purchase a Tail Policy on the D&O Insurance on terms and conditions no less favorable, in the aggregate, than the D&O Insurance. In the event that either the Company or Parent shall purchase 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 the first sentence of this Section 6.13(b) for so long as the case may besuch Tail Policy shall be maintained in full force and effect.
(c) The obligations under this Section 6.13 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Party (or any other person who is a beneficiary under a Tail Policy referred to in Section 6.13(b) (and their heirs and representatives)) without the prior written consent of such person. Each of the Indemnified Parties or other persons who are beneficiaries under the D&O Insurance or the Tail Policy referred to in Section 6.13(b) (and their heirs and representatives) are intended to be third party beneficiaries of this Section 6.13, with full rights of enforcement as if a party thereto.
(d) In the event Parent or the Company or any of its successors or assigns Surviving Corporation (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, then proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the successors and assigns of the Company or at CIG’s option, CIGcase may be, shall assume the obligations set forth in this Section 10.06.
6.13. The rights of the Indemnified Parties (dand other persons who are beneficiaries under the D&O Insurance or the Tail Policy referred to in Section 6.13(b) This (and their heirs and representatives)) under this Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, 6.13 shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person persons may have under the certificate or articles of incorporation, bylaws or other equivalent organizational documents and any and all indemnification agreements of or entered into by contract the Company or otherwiseany of its Subsidiaries, or applicable Law (whether at law or in equity).
Appears in 2 contracts
Samples: Merger Agreement (Microchip Technology Inc), Merger Agreement (Standard Microsystems Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Following the Effective Time, Parent and the Surviving Corporation shall, to the extent permitted by law, (i) jointly and severally indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Company agrees that and its Subsidiaries (in all rights of their capacities) (A) to the same extent such individuals are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the certificate of incorporation and bylaws of the Company and indemnification agreements, if any, in existence on the date hereof with, or for the benefit of, any directors, officers and exculpation from liabilities employees of the Company and its Subsidiaries and (B) without limitation to subclause (A) above, to the fullest extent permitted by law, in each case for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue and the consummation of the transactions contemplated hereby), (ii) include and cause to be maintained in full force and effect in accordance with their terms subsequent the certificate of incorporation and bylaws of the Surviving Corporation (or any successor to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified Surviving Corporation) for a period of six years from after the Effective Time, provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses that are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of incorporation and bylaws and (iii) cause to be maintained for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ and officers’ liability insurance which shall be in effect for a period of six years from and fiduciary liability insurance with one or more reputable unaffiliated third-party insurers maintained by the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies Company (provided that the Surviving Corporation Parent (or any successor thereto) may substitute therefor one or more policies with one or more reputable unaffiliated third-party insurers of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or in any one year an amount per year equal to in excess of 300% of current the annual premiums currently paid by the Company for such insurance (which if the Board of Directors of Parent as constituted after the Effective Time shall have so determined; and, provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with at least the greatest coverage available for a cost not exceeding such amount. Notwithstanding any foregoing provision to the contrary, the treatment of past and present directors, officers and employees of the Company represents and warrants its Subsidiaries with respect to be $940,000 elimination of liability, indemnification, advancement of expenses and liability insurance under this Section 7.06 shall be, in the aggregate, no less advantageous to the intended beneficiaries thereof than the corresponding treatment of the past and present directors, officers and employees of Parent and its Subsidiaries under Section 7.06(b), as the case may be.
(cb) In The obligations of Parent and the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and Surviving Corporation under this Section 7.06 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.06 applies without the continuing or surviving corporation or entity consent of such consolidation or merger or affected indemnitee (ii) transfers all or substantially all of its properties and assets it being expressly agreed that the indemnitees to any Person, then, and in each such case, proper provision whom this Section 7.06 applies shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions third-party beneficiaries of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise7.06).
Appears in 2 contracts
Samples: Merger Agreement (St Paul Companies Inc /Mn/), Merger Agreement (St Paul Companies Inc /Mn/)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Appointment Time Parent will, and will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company agrees that all rights pursuant to any indemnification agreements between the Company and exculpation from liabilities for acts or omissions occurring at or its directors and officers in effect immediately prior to the Effective Appointment Time (and rights for advancement previously made available to Parent prior to the execution hereof, and any indemnification and limitation of expenses) now existing in favor of liability provisions under the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Company's Restated Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company Bylaws as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Timehereof. Further, the The Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnificationindemnification and limitation of liability for directors, advancement of expenses officers, employees, fiduciaries and exculpation of former or present directors and officers agents ("INDEMNIFIED PARTIES") than are presently set forth in the Restated Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Parent shall be in effect for a period of six years from cause the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts Surviving Corporation to maintain in effect for six (6) years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided PROVIDED that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 115,000 in the aggregate); PROVIDED, as FURTHER, that if the case may bepremium for such coverage exceeds such amount, Parent and/or the Surviving Corporation shall purchase a comparable policy with the greatest coverage available for 200% of the annual premium currently paid by Company.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.067.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 7.06 shall survive the consummation of the Offer and the Merger and are (i) intended to be for the benefit of, and will be enforceable by, each of the Indemnified D&O, his or her heirs, Parties and his or her representatives and are (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Appointment Time, Parent will, and will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company agrees that all rights pursuant to any indemnification agreements between the Company and exculpation from liabilities for acts or omissions occurring at or its directors and officers in effect immediately prior to the Effective Appointment Time (and rights for advancement previously made available to Parent prior to the execution hereof, and any indemnification and limitation of expenses) now existing in favor of liability provisions under the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Company's Restated Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company Bylaws as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Timehereof. Further, the The Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnificationindemnification and limitation of liability for directors, advancement of expenses officers, employees, fiduciaries and exculpation of former or present directors and officers agents ("Indemnified Parties") than are presently set forth in the Restated Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Parent shall be in effect for a period of six years from cause the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts Surviving Corporation to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 110,000 in the aggregate)) ; provided, as further, that if the case may bepremium for such coverage exceeds such amount, Parent and/or the Surviving Corporation shall purchase a comparable policy with the greatest coverage available for 200% of the annual premium currently paid by Company.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.067.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 7.06 shall survive the consummation of the Offer and the Merger and are (i) intended to be for the benefit of, and will be enforceable by, each of the Indemnified D&O, his or her heirs, Parties and his or her representatives and are (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Cardiac Pathways Corp), Merger Agreement (Boston Scientific Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Combined Company agrees that shall (i) indemnify and hold harmless, and provide advancement of expenses to, all rights past and present directors, officers and employees of Alpha and its Subsidiaries (in all of their capacities as such), to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Alpha pursuant to Alpha's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any such directors, officers and exculpation from liabilities employees of Alpha and its Subsidiaries for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws consummation of the Company after the Effective Time shall contain provisions no less favorable with respect transactions contemplated hereby) and (ii) cause to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ ' and officers’ ' liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies fiduciary liability insurance maintained by Alpha (provided that the Surviving Corporation Combined Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured than the current policies maintained by Alpha) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Combined Company be required to expend in any one year an amount in excess of 200% of the annual premiums (on a per capita basis) currently paid by Alpha for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Combined Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(b) The Combined Company shall (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Washington Companies (in all of their capacities as such), to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Conexant pursuant to Conexant's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any such directors, officers and employees of the Washington Companies for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Section 10.06(bAgreement and the consummation of the transactions contemplated hereby) more than $2,500,000 as and (ii) maintain in effect for each of the applicable persons referred to in clause (i) for a premium for period of six years after the tail policy or an amount per year equal to 300% Effective Time policies of current annual premiums paid by directors' and officers' liability insurance and fiduciary liability insurance of at least the Company for such insurance (same coverage and amounts as, and containing terms and conditions which premiums the Company represents and warrants to be $940,000 are, in the aggregate), as no less advantageous to the case may beinsured than, the current policies of directors' and officers' liability insurance maintained by Conexant, with respect to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Combined Company be required to expend in any one year an amount in excess of 200% of the annual premiums (on a per capita basis) currently paid by Conexant for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Combined Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 7.8 are intended to be for the benefit of, of and will shall be enforceable by, by each Indemnified D&O, his indemnified or her heirs, and his or her representatives and are insured party referred to above in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisethis Section 7.8.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Conexant Systems Inc), Agreement and Plan of Reorganization (Alpha Industries Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The For six (6) years after the Effective Time, Parent shall cause the Surviving Company agrees and its Subsidiaries to honor and fulfill in all respects the obligations of the Company under its articles of incorporation and bylaws and its Subsidiaries under their respective certificates of incorporation and bylaws (and other similar organizational documents) and all agreements for indemnification (that all rights have been disclosed to indemnification Parent prior to the date hereof), exculpation of liability or advancement of expenses, in effect as of the date hereof between the Company or any of its Subsidiaries and exculpation from liabilities for any of their respective current directors, officers or employees or former directors and officers or any person who becomes a director or officer prior to the Effective Time (the “Indemnified Parties”).
(b) For a period of six (6) years after the Effective Time, Parent and the Surviving Company shall maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”) in respect of acts or omissions occurring at or prior to the Effective Time (Time, covering each person covered by the D&O Insurance immediately prior to the Effective Time, on terms with respect to the coverage and rights for advancement of expenses) now existing in favor amounts no less favorable than those of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as D&O Insurance in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective TimeAgreement; provided, however, that the Surviving Company may, at its option, substitute therefor policies of Parent, the Surviving Company or any of their respective Subsidiaries containing terms with respect to coverage and amounts no less favorable to such persons than the D&O Insurance, provided further, however, that in no event shall the Company be required to expend pursuant to satisfying its obligations under this Section 10.06(b) more than $2,500,000 as a premium for 6.13(b), Parent and the tail policy or an amount per year equal Surviving Company shall not be obligated to 300% of current pay annual premiums paid by in excess of two hundred percent (200%) of the Company for amount of the Company’s annual premium amounts as of the date hereof (such insurance two hundred percent (200%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be $940,000 as set forth in Section 6.13 of the Company Disclosure Letter), provided further that if the annual premiums of such insurance coverage exceed such amount, Parent and the Surviving Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. 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 (the “Tail Policy”) on the D&O Insurance on terms and conditions no less favorable, in the aggregate), than the D&O Insurance and for an amount not to exceed three hundred percent (300%) of the Company’s annual premium amounts as of the case date hereof. In the event that the Company does not purchase the Tail Policy, Parent may bepurchase a Tail Policy on the D&O Insurance on terms and conditions no less favorable, in the aggregate, than the D&O Insurance. In the event that either the Company or Parent shall purchase such a Tail Policy prior to the Effective Time, Parent and the Surviving Company 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 Company under the first sentence of this Section 6.13(b) for so long as such Tail Policy shall be maintained in full force and effect.
(c) The obligations under this Section 6.13 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Party (or any other person who is a beneficiary under a Tail Policy referred to in Section 6.13(b) (and their heirs and representatives)) without the prior written consent of such person. Each of the Indemnified Parties or other persons who are beneficiaries under the D&O Insurance or the Tail Policy referred to in Section 6.13(b) (and their heirs and representatives) are intended to be third party beneficiaries of this Section 6.13, with full rights of enforcement as if a party thereto.
(d) In the event Parent or the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, then proper provision shall be made so that such continuing or surviving entity or transferee of such assets, as the successors and assigns of the Company or at CIG’s option, CIGcase may be, shall assume the obligations set forth in this Section 10.06.
6.13. The rights of the Indemnified Parties (dand other persons who are beneficiaries under the D&O Insurance or the Tail Policy referred to in Section 6.13(b) This (and their heirs and representatives)) under this Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, 6.13 shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person persons may have under the certificate or articles of incorporation, bylaws or other equivalent organizational documents and any and all indemnification agreements of or entered into by contract the Company or otherwiseany of its Subsidiaries, or applicable Law (whether at law or in equity).
Appears in 2 contracts
Samples: Merger Agreement (Micrel Inc), Merger Agreement (Microchip Technology Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the memorandum and articles of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availablethe 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 D&O Insurance Policies (provided “Indemnified Parties”); provided, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to favorable than those provided under the Effective TimeCompany’s current policies; provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b7.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums insurance. Alternatively, the Company represents may and, at the joint request of Parent and warrants Merger Company, the Company shall, purchase a six-year “tail” prepaid policy prior to be $940,000 the Effective Time on terms and conditions no less advantageous to the Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company. Notwithstanding anything to the contrary set forth in this Agreement, if such “tail” prepaid policies have been obtained by the aggregate)Company prior to the Effective Time, as the case may beSurviving Company shall maintain such policies in full force and effect, and continue to honor the respective obligations thereunder, and all other obligations of the Surviving Company under this Section 7.05(b) shall terminate.
(c) Subject to the terms and conditions of this Section 7.05, from and after the Effective Time, the Surviving Company shall comply with all of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses) the 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 (i) the fact that such person is or was a director or officer of the Company or such Subsidiary or (ii) any acts or omissions by such person in such capacity 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 to enforce this provision or any other indemnification or advancement right of any Indemnified Party), to the extent provided under the Company’s or such Subsidiaries’ respective organizational and governing documents or agreements in effect on the date hereof and to the fullest extent permitted by the CICL or any other applicable Law on the date hereof, 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.
(d) In the event the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.067.05.
(de) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 7.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 7.05.
(f) Nothing in addition 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 their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 7.05 is not prior to or in substitution for, any other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Zhaopin LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to 5.4.1 From the Effective Time (through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Corporation shall, to the maximum extent permitted by applicable law, indemnify and rights for hold harmless, and provide advancement of expenses) now existing in favor expenses to, each present (as of the current Effective Time) and former officer or former directors or officers director of the Company (the “D&O Indemnified D&OsParties”), to the same extent as such D&O Indemnified Parties are entitled to be indemnified (or entitled to advancement of expenses) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as date hereof pursuant to the WBCA, the Restated Articles and the Company’s Bylaws (in effect on as of the date of this Agreement shall continue hereof) or individual indemnity agreements, board resolutions or otherwise, in full force and effect in accordance with their terms subsequent each case, as disclosed to the Effective Time. Further, the Certificate of Incorporation and By-laws Parent as of the Company after date hereof. Parent shall not prohibit the Effective Time Surviving Corporation from providing the forgoing indemnification rights.
5.4.2 The Charter and Bylaws of the Surviving Corporation or any successor shall contain provisions that are no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than as are presently set forth in the Certificate of Incorporation Restated Articles and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period ’s Bylaws as in effect on the date of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodthis Agreement.
(b) 5.4.3 The Company shallSurviving Corporation shall maintain, at its optionno expense to the beneficiaries, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time the D&O Insurance Policies current directors’ and officers’ liability insurance policies maintained by the Company (provided that Parent or the Surviving Corporation may (i) substitute therefor policies of at least substantially the same or equivalent coverage containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to any beneficiary thereof or (ii) arrange for “tail” coverage for such six-year period under the Company’s current directors’ and officers’ liability insurance policies or from a compatible insurance carrier) with respect to matters existing or occurring at or prior to the Effective Time; provided, however, that in no event shall will the Company Surviving Corporation be required to expend pursuant to this Section 10.06(bin excess of three-hundred percent (300%) more than $2,500,000 as a of the annual premium for the tail policy or an amount per year equal to 300% of current annual premiums currently paid by the Company for such its directors’ and officers’ liabilities insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may bepolicies.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after following the Effective Time Merger shall contain provisions no less favorable identical with respect to indemnification, advancement elimination of expenses personal liability and exculpation of former or present directors and officers than are presently indemnification to those set forth in Articles 8 and 9 of the Certificate of Incorporation of the Company set forth in Exhibit A hereto and Article VII, Section 5 of the By-laws of the Company, respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individualsindividuals who at the Effective Time were directors, except as amendments may be required by officers, agents or employees of the DGCL during such periodCompany.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor Time policies of at least the same coverage directors' and officers' liability insurance containing terms and conditions that which are not materially less favorable)advantageous than those policies maintained by the Company at the date hereof, in either case with respect to matters occurring prior to the Effective Time, to the extent available, and having the maximum available coverage under the current policies of directors' and officers' liability insurance; providedprovided that (i) the Company following the Merger shall not be required to spend in excess of a $450,000 annual premium therefor; provided further that if the Company following the Merger would be required to spend in excess of a $450,000 premium per annum to obtain insurance having the maximum available coverage under the current policies, howeverthe Company will be required to spend $450,000 to maintain or procure insurance coverage pursuant hereto, that subject to availability of such (or similar) coverage and (ii) such policies may in no event shall the sole discretion of the Company be required to expend pursuant to this Section 10.06(b) one or more than $2,500,000 as a premium "tail" policies for all or any portion of the tail policy or an amount per full six year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may beperiod.
(c) In furtherance of and not in limitation of the event preceding paragraph, Newco agrees that the officers and directors of the Company that are defendants in all litigation commenced by stockholders of the Company with respect to (x) the performance of their duties as such officers and/or directors under federal or state law (including litigation under federal and state securities laws) and (y) Newco's offer or proposal to acquire the Company including, without limitation, any and all such litigation commenced on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of the Company, in the Subject Litigation by one counsel (and Delaware counsel if appropriate and one local counsel in each jurisdiction in which a case is pending and one counsel for directors of the Company which are affiliated with Oaktree Capital Management, LLC (the "Oaktree Directors"), if Newco and the Company shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to such Oaktree Directors which are different from or additional to those available to the other directors of the Company) each of which such counsel shall be selected by a plurality of such director defendants; provided that neither Newco nor the Company shall be liable for any settlement effected without its successors or assigns prior written consent (i) consolidates with or merges into any other Person and which consent shall not be unreasonably withheld) and that a condition to the continuing or surviving corporation or entity indemnification payments provided in Section 6.6(a) shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Newco; and provided further that the neither Newco nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non- appealable, that indemnification of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and officer/director defendant in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06manner contemplated hereby is prohibited by applicable law.
(d) This Section 10.06 shall continue in effect subsequent to Upon the Effective Time, is intended to benefit the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and each Indemnified D&O, shall be binding on all successors and assigns officers of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnificationexculpation, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in the Certificate memorandum and articles of Incorporation and By-laws association of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Company shallSurviving Corporation shall maintain in effect for six (6) years from the Effective Time, at its option, either (A) purchase a tail policy of the current directors’ and officers’ liability insurance which shall be in effect for a period of six years from policies maintained by the Company with respect to matters occurring prior to the Effective Time, if available, including acts or omissions occurring in connection with this Agreement and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in consummation of the aggregate, than Transactions (the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableparties covered thereby, the D&O Insurance Policies (provided “Indemnified Parties”); provided, however, that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums insurance. In addition, the Company represents 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 warrants conditions no less advantageous to be $940,000 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 Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such policies in full force and effect, and continue to honor the aggregate)respective obligations thereunder, as the case may beand all other obligations of Parent or Surviving 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 Corporation shall comply with all of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses) the 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 (i) the fact that such person is or was a director or officer of the Company or such Subsidiary or (ii) any acts or omissions occurring or alleged to have occurred 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; provided that this Section 6.05(c) is not intended to confer any new or additional rights on any such person, 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, the Company’s and its Subsidiaries’ respective organizational and governing documents, or any agreements as in effect as of the date of this Agreement and set forth on Section 6.05(c) of the Company Disclosure Schedule.
(d) A person seeking indemnification in accordance with Section 6.05(c) shall use commercially reasonable efforts to promptly notify the Surviving Corporation to prevent the Surviving Corporation or any of its subsidiaries from being materially and adversely prejudiced by late notice. The right of the Surviving Corporation (or a subsidiary nominated by it), if any, to participate in and/or assume the defense of any Action in respect of which indemnification is sought under Section 6.05(c) shall be determined in accordance with the applicable agreement or document providing for such indemnification.
(e) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(g) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Associated and the Company agrees that all rights shall cooperate, using commercially reasonable efforts, to indemnification purchase and exculpation from liabilities for maintain in effect, one or more so called “tail” or “run-off” directors and officers liability insurance policies with respect to wrongful acts and/or omissions committed or omissions occurring at allegedly committed by any of the officers or directors of the Company prior to the Effective Time (“D&O Coverage”). Such D&O Coverage shall have a maximum premium of 250% of last year’s annual premium for the Company’s existing directors and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company liability insurance policy (the “Indemnified D&OsPremium Limit”) ), an aggregate coverage limit over the term of such policy in an amount as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company near as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent possible to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of aggregate annual coverage limit under 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of ’s existing directors’ and officers’ liability insurance which shall be in effect for policy, with a period term of up to six (6) years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, also be as near as possible in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts all other material respects to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timesuch existing policy; provided, however, that in no event shall if the premium for six years of D&O Coverage on such terms will exceed the Premium Limit, the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for may, with the tail policy approval of Associated, modify the term or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), coverage amounts so long as the case premium does not exceed the Premium Limit. Notwithstanding the foregoing, the Surviving Corporation, if it so elects in its sole discretion, may bepurchase the aforesaid coverages for a period longer than six (6) years or at a cost in excess of the Premium Limit.
(cb) In the event Associated or the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger 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 Associated or the Company or at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume the obligations set forth in this Section 10.06section.
(c) Associated will indemnify directors and officers of the Company and Company Subsidiaries to the full extent permissible under the Company’s Articles of Incorporation, Bylaws or Wisconsin Law.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.11 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified D&O, his or her heirs, Party and his or her representatives heirs and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiserepresentatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors and officers (or officers equivalent role) of the Purchaser Parties or the Company or its Subsidiaries (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties in effect on the date hereof and disclosed in Schedule 7.9(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the Effective Timeextent permitted by applicable Law. FurtherFor a period of six (6) years after the Closing, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall and its Subsidiaries to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior respective Person to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid extent permitted by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. applicable Law. The provisions of this Section 10.06 7.9 shall survive the Closing and are intended to be for the benefit of, and will shall be enforceable by, each of the D&O Indemnified D&OPersons and their respective heirs and Representatives.
(b) The Purchaser Parties shall obtain and fully pay at the Closing (or to the extent permitted by such policies while still allowing effectiveness from the Closing, his or her heirspromptly after the Closing) out of the remaining proceeds of the Trust Fund after the Closing Redemption and/or Transaction Financing proceeds the premium for a “tail” insurance policy that provides coverage for up to a six-year period from the Closing Date for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided that in no event shall the Purchaser Parties be required to expend for such policies pursuant to this Section 7.9(b) an aggregate amount in excess of 200% of the amount per annum that the Parent paid in its last full fiscal year, which amount is set forth in Schedule 7.9(b). Purchaser shall cause such D&O Tail Insurance to be maintained in full force and his or her representatives effect, for its full term and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisehonor all obligations thereunder.
Appears in 1 contract
Samples: Business Combination Agreement (Inception Growth Acquisition LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification certificate of incorporation and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor bylaws of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in the Certificate certificate of Incorporation incorporation and By-laws bylaws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors’ and officers’ liability insurance policies maintained by the Company (provided that except the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case favorable to the Persons covered by such policies maintained by the Company) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.06(b) more than $2,500,000 as a premium for the tail policy or an annual amount per year equal to in excess of 300% of current the annual premiums currently paid by the Company for such insurance; provided, further, that, if the amount of the annual premiums necessary to maintain or procure such insurance (which premiums coverage exceeds such maximum amount, the Company represents Surviving Corporation shall maintain or procure, for such six-year period, the most advantageous policies of directors’ and warrants officers’ insurance obtainable for an annual premium equal to be $940,000 in the aggregate), as the case may bethat maximum amount.
(c) The Surviving Corporation’s obligations under Section 7.06(b) may be satisfied by the Company purchasing a “tail” policy from an insurance carrier with substantially the same or better credit rating as the current carrier for the Company’s existing directors’ and officers’ insurance policy, which (i) has an effective term of six years from the Effective Time, (ii) covers each Person covered by the Company’s directors’ and officers’ insurance policy in effect on the date of this Agreement or at the Effective Time for actions and omissions occurring prior to the Effective Time, and (iii) contains terms and conditions that are no less favorable to the persons covered by such policies maintained by the Company than those of the Company’s directors’ and officers’ insurance policy in effect on the date of this Agreement; provided, however, that the amount paid by the Company shall not be in excess of 300% of the annual premiums currently paid by the Company for such insurance. If such “tail” prepaid policies have been obtained by the Company prior to the Effective Time, the Surviving Corporation shall maintain such policies in full force and effect, for their full respective terms, and continue to honor its respective obligations thereunder.
(d) In the event that Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company or at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume the obligations set forth in this Section 10.067.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. Holdco shall, and in the case of the El Sitio Merger, Holdco shall cause the surviving corporation of the El Sitio Merger to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of each party to the Transactions and their respective subsidiaries (in all of their capacities) (a) The Company agrees that all rights to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by such party pursuant to such party's certificate of incorporation, bylaws (or equivalent constitutive documents) and indemnification agreements, if any, in existence on the date hereof with any directors, officers and exculpation from liabilities employees of such party and its subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in each case for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue and the consummation of the Transactions), (ii) include and cause to be maintained in full force and effect in accordance with their terms subsequent to the surviving corporation's (or any successor's) memorandum and articles of association, certificate of incorporation and bylaws or equivalent constitutive documents after the Effective Time. Further, the Certificate provisions regarding elimination of Incorporation liability of directors, indemnification of officers, directors and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, employees and advancement of expenses and exculpation of former or present directors and officers than are presently set forth which are, in the Certificate aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of Incorporation incorporation and By-laws bylaws of the Company, which provisions shall not such party and (iii) cause to be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ ' and officers’ ' liability insurance which shall be in effect for a period of six years from the Effective Timeand fiduciary liability insurance maintained by such party (provided, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation surviving corporation (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Company surviving corporation be required to expend pursuant in any one year an amount in excess of 150% of the annual premiums currently paid by such party for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the surviving corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. The provisions of clause (iii) of the immediately preceding sentence shall be deemed to have been satisfied if prepaid policies have been obtained prior to the Closing for purposes of this Section 10.06(b) more than $2,500,000 as a premium 6.5, which policies provide such directors and officers with coverage for the tail policy an aggregate period of six years with respect to claims arising from facts or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company events that occurred on or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to before the Effective Time, is intended including, without limitation, in respect of the Transactions and for a premium not in excess of the aggregate of the premiums set forth in the preceding sentence. If such prepaid policies have been obtained prior to benefit the Company Closing, Holdco shall and each Indemnified D&Oshall cause the applicable surviving corporation to maintain such policies in full force and effect, and continue to honor the obligations thereunder. The obligations under this Section 6.5 shall not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 6.5 applies without the consent of such affected Person (it being expressly agreed that the Persons to whom this Section 6.5 applies shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions third-party beneficiaries of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.6.5). 66
Appears in 1 contract
Samples: Combination Agreement (Ibero American Media Partners Ii LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after following the Effective Time Merger shall contain provisions no less favorable identical with respect to indemnification, advancement elimination of expenses personal liability and exculpation of former or present directors and officers than are presently indemnification to those set forth in Articles 8 and 9 of the Certificate of Incorporation of the Company set forth in Exhibit A hereto and Article VII, Section 5 of the By-laws of the Company, respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individualsindividuals who at the Effective Time were directors, except as amendments may be required by officers, agents or employees of the DGCL during such periodCompany.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor Time policies of at least the same coverage directors' and officers' liability insurance containing terms and conditions that which are not materially less favorable)advantageous than those policies maintained by the Company at the date hereof, in either case with respect to matters occurring prior to the Effective Time, to the extent available, and having the maximum available coverage under the current policies of directors' and officers' liability insurance; providedprovided that (i) the Company following the Merger shall not be required to spend in excess of a $450,000 annual premium therefor; provided further that if the Company following the Merger would be required to spend in excess of a $450,000 premium per annum to obtain insurance having the maximum available coverage under the current policies, howeverthe Company will be required to spend $450,000 to maintain or procure insurance coverage pursuant hereto, that subject to availability of such (or similar) coverage and (ii) such policies may in no event shall the sole discretion of the Company be required to expend pursuant to this Section 10.06(b) one or more than $2,500,000 as a premium "tail" policies for all or any portion of the tail policy or an amount per full six year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may beperiod.
(c) In furtherance of and not in limitation of the event preceding paragraph, Newco agrees that the officers and directors of the Company that are defendants in all litigation commenced by stockholders of the Company with respect to (x) the performance of their duties as such officers and/or directors under federal or state law (including litigation under federal and state securities laws) and (y) Newco's offer or proposal to acquire the Company including, without limitation, any and all such litigation commenced on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of the Company, in the Subject Litigation by one counsel (and Delaware counsel if appropriate and one local counsel in each jurisdiction in which a case is pending and one counsel for directors of the Company which are affiliated with Oaktree Capital Management, LLC (the "Oaktree Directors"), if Newco and the Company shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to such Oaktree Directors which are different from or additional to those available to the other directors of the Company) each of which such counsel shall be selected by a plurality of such director defendants; provided that neither Newco nor the Company shall be liable for any settlement effected without its successors or assigns prior written consent (i) consolidates with or merges into any other Person and which consent shall not be unreasonably withheld) and that a condition to the continuing or surviving corporation or entity indemnification payments provided in Section 6.6(a) shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Newco; and provided further that the neither Newco nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and officer/director defendant in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06manner contemplated hereby is prohibited by applicable law.
(d) This Section 10.06 shall continue in effect subsequent to Upon the Effective Time, is intended to benefit the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and each Indemnified D&O, shall be binding on all successors and assigns officers of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (TCW Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company Dianon agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) UroCor and its Subsidiaries as provided in its Certificate their respective articles of Incorporation organization or Byby-laws and any indemnification or other agreements of the Company UroCor (as each is in effect on the date hereof and provided such indemnification agreements are disclosed in the UroCor Disclosure Schedule), shall be assumed by the Surviving Corporation in the Merger, without further action, as of this Agreement the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such periodterms.
(b) The Company Surviving Corporation shall, at its option, either (Ai) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect maintain for a period of not less than six years from after the Effective Time, if available, UroCor's current directors' and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies officers' liability insurance covering acts or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters omissions occurring prior to the Effective Time; provided, however, that Time ("D&O Insurance") with respect to those Persons who are currently covered by UroCor's directors' and officers' liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in no event shall effect on the Company be required to expend pursuant to this Section 10.06(bdate hereof or (ii) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants cause to be $940,000 in the aggregate)provided coverage no less favorable to such directors or officers, as the case may be, than the D&O Insurance, in each case so long as the annual premium therefor would not be in excess of $240,000 (the "Maximum Premium"). If the existing or substituted directors' and officers' liability insurance expires, is terminated or canceled during such six-year period, the Surviving Corporation will obtain as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium. UroCor represents that the last premium it paid for D&O Insurance prior to the date of this Agreement was $285,000 for the two-year period ending November 2001. At the option of Dianon, Dianon may assume the obligations of the Surviving Corporation set forth in Sections 5.9(a) and 5.9(b), and thereafter the Surviving Corporation shall not have any further obligations pursuant to this Section 5.9(b) for so long as Dianon continues to so assume the obligations of the Surviving Corporation.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 5.9 are (i) intended to be for the benefit of, and will be enforceable by, each Indemnified D&Oindemnified party, his or her heirs, heirs and his or her representatives and are (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.
Appears in 1 contract
Samples: Merger Agreement (Urocor Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) a. The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws By‑laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently currently set forth in the Certificate of Incorporation of the Company and By-laws the By‑laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shallindividuals who, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from or prior to the Effective Time, if availablewere directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by law.
b. For not less than six (6) years from and after the Effective Time, Parent shall contain substantially cause the Surviving Corporation to indemnify and hold harmless all past and present directors, officers and employees of the Company (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 coverage 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 amount as(ii) indemnification agreements, and contain terms and conditions no less advantageousif any, in existence on the aggregatedate of this Agreement with any directors, than officers or employees of the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain Company.
c. The Surviving Corporation shall maintain, in effect for six years from and after the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor insurance “tail” or other insurance policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to directors' and officers' liability insurance relating to matters occurring prior to the Effective Time, in an amount and scope at least as favorable as the coverage applicable to directors and officers of the Company as of the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more if such “tail” or other policies are not available at an annual cost not greater than $2,500,000 as a premium for the tail policy or 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 policy (which premiums the Company represents and warrants “Insurance Cap”), then the Surviving Corporation shall cause to be $940,000 obtained as much comparable insurance as can reasonably be obtained in its good faith judgment at a cost up to but not exceeding the aggregate), as the case may beInsurance Cap.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Athenahealth Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable favorable, taken as a whole, with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article VI of the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors’ and officers’ liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300175% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 US$131,920 in the aggregate); provided, however, that in the event of an expiration, termination or cancellation of such current policies, Merger Sub or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for aggregate annual premiums which shall not exceed 175% of current annual premiums paid by the case may beCompany for such insurance.
(c) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.06.
(d) This Section 10.06 shall continue in effect subsequent Parent and Merger Sub acknowledge that the Company is party to the Effective Time, is intended to benefit indemnification agreements with each director and executive officer of the Company and each Indemnified D&O, that at the Effective Time the Company’s obligations under such indemnification agreements shall be binding on all successors and assigns become the obligations of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseSurviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Stantec Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Effective Time, Parent shall provide exculpation and indemnification for each person who is now or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company agrees or any Subsidiary of the Company (the "Company Officers or Directors") that all rights is the same as the exculpation and indemnification provided to the Company Officers or Directors by the Company (including advancement of expenses, if so provided) immediately prior to the Effective Time in the Company Charter or Company Bylaws, in any separate indemnification agreements between the Company and its directors or officers or in any other Company Employee Benefit Plan or Company Pension Plan as in effect on the Prior Execution Date; provided, that such exculpation from liabilities for acts and indemnification covers actions or omissions occurring at on or prior to the Effective Time (Time, including, without limitation, all transactions contemplated by this Agreement. Parent shall obtain and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as maintain in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after at the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present continuing until the sixth anniversary thereof "run-off" directors and officers than are presently set forth in the Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for with a period of six years from the Effective Time, if available, coverage amount and shall contain substantially the same coverage and amount as, and contain other terms and conditions no less advantageous, favorable in the aggregate, aggregate to the Company Officers or Directors than under the coverage provided in Company's current directors and officers liability insurance policy covering the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from directors and officers of the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case Company with respect to matters occurring their service as such prior to the Effective Time; provided, however, that in no event shall the Company Parent be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as pay a premium for the tail policy or an amount per year equal to 300such insurance in excess of 150% of current the last annual premiums premium paid by the Company prior to the Prior Execution Date, but if the premium required to obtain such coverage would exceed such maximum amount, Parent shall purchase as much coverage as possible for such insurance maximum amount.
(which premiums the Company represents and warrants b) The provisions of this Section 5.11 are intended to be $940,000 for the benefit of, and shall be enforceable by, each Company Officer or Director, his or her heirs and his or her personal representatives and shall be binding on all successors and assigns of Parent and the Company. Parent agrees to pay all costs and expenses (including fees and expenses of counsel) that may be incurred by any Company Officer or Director, his or her heirs or his or her personal representatives in successfully enforcing the aggregate), as indemnity or other obligations of Parent under this Section 5.11. The provisions of this Section 5.11 shall survive the case Merger and are in addition to any other rights to which a Company Officer or Director may bebe entitled.
(c) In the event the Company that Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, such entity shall assume expressly or by operation of law the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time5.11, is which obligations are expressly intended to be for the irrevocable benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Companyof, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his Company Officer or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseDirector.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Walden Residential Properties Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees Surviving Operating Agreement shall contain the provisions regarding liability of directors and indemnification of directors and officers that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement are set forth, as of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue Agreement, in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate Articles of Incorporation and the By-laws Laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the CompanyNGP, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the First Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who at or at any such individualstime prior to the First Effective Time were directors, except as amendments may be required by the DGCL during such period.
(b) The Company shallofficers, at its optionemployees, either (A) purchase a tail policy fiduciaries or agents of directors’ and officers’ liability insurance which shall be in effect for NGP. For a period of six years from the First Effective Time, if available, the indemnification agreements existing as of the date of this Agreement between NGP and the directors of NGP (the "INDEMNIFICATION AGREEMENTS") shall contain substantially not be amended or otherwise modified in any manner that would affect adversely the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or rights thereunder of such individuals.
(Bb) use its reasonable best efforts to maintain in effect for For a period of six years from after the First Effective Time, if available, the D&O Insurance Policies (provided that the NGP Surviving Corporation may substitute therefor Company shall cause to be maintained in effect policies of directors' and officers' liability insurance with coverage in amount and scope at least as favorable as NGP's existing policies (copies of which have been made available to Buyer) as of the same coverage containing terms and conditions that are not materially less favorable), in either case date of this Agreement with respect to matters occurring claims arising from facts or events that occurred prior to the First Effective Time; providedPROVIDED, howeverHOWEVER, that during such period the NGP Surviving Company shall in no event shall the Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% 250 percent of current annual premiums paid by the Company NGP for such insurance (insurance, which premiums the Company represents and warrants to be $940,000 current premium amount is set forth in the aggregate), as the case may beSection 6.05(b) of NGP Disclosure Schedule.
(c) This Section 6.05 is intended to be for the benefit of, and shall be enforceable by, the indemnified parties, their heirs and personal representatives and shall be binding on the NGP Surviving Company and its respective successors and assigns.
(d) From and after the First Effective Time, the NGP Surviving Company agrees that it shall, and Buyer shall and shall cause the NGP Surviving Company to, indemnify and hold harmless each present and former director and officer of NGP, determined as of the First Effective Time (the "INDEMNIFIED PARTIES"), 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 First Effective Time, whether asserted or claimed prior to, at or after the First Effective Time, to the fullest extent that NGP would have been permitted under Maryland law, under NGP's charter documents (as in effect on the date hereof) and under the Indemnification Agreements to indemnify such Indemnified Parties (and the NGP Surviving Company shall, and Buyer shall cause the NGP Surviving Company to, advance expenses as incurred to the fullest extent permitted under applicable Law; PROVIDED that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification); and PROVIDED, FURTHER, that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Maryland law, NGP charter documents and the Indemnification Agreements shall be made by independent counsel selected jointly by the NGP Surviving Corporation and the relevant officer or director.
(e) Any Indemnified Party wishing to claim indemnification under paragraph (d) of this Section 6.05, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Buyer thereof, but the failure to so notify shall not relieve or NGP Surviving Company of any liability it may have to such Indemnified Party, except to the extent that such failure materially prejudices the NGP Surviving Company. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the First Effective Time), (i) the NGP Surviving Company shall have the right to assume the defense thereof and the NGP Surviving Company 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 NGP Surviving Company elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Buyer or the NGP Surviving Company and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the NGP Surviving Company shall, and Buyer shall cause the NGP Surviving Company to, pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; PROVIDED, HOWEVER, that Buyer and the NGP Surviving Company shall be obligated pursuant to this paragraph (f) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) neither Buyer nor the NGP Surviving Company shall be liable for any settlement effected without the prior written consent of the NGP Surviving Company (which consent shall not be unreasonably withheld); and PROVIDED, FURTHER, that neither Buyer nor the NGP Surviving Company shall have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law. If such indemnity is not available with respect to any Indemnified Party, then the NGP Surviving Corporation shall, and Buyer shall cause the NGP Surviving Corporation to, and the Indemnified Party shall, each contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits.
(f) If the NGP Surviving Company or any of its successors or assigns (i) consolidates shall consolidate with or merges merge into any other Person corporation or entity and shall not be the continuing or surviving corporation or entity of or such consolidation or merger or (ii) transfers shall transfer all or substantially all of its properties and assets or outstanding voting securities to any Personindividual, thencorporation or other entity, then and in each such case, proper provision provisions shall be made so that the successors and assigns of the NGP Surviving Company or at CIG’s option, CIG, shall assume all of the obligations set forth in this Section 10.066.05.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The For six years after the Effective Time, Parent and the Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer or director of the Company agrees or any Company Subsidiary (each, an "INDEMNIFIED Party") against all losses, claims, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and judgments, fines losses, claims, liabilities and amounts paid in settlement (provided that all rights to indemnification and exculpation from liabilities for acts any such settlement is effected with the prior written consent of Parent or the Surviving Corporation, which consent will not be unreasonably withheld)) arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (to the fullest extent permitted under Nevada law and rights for the Surviving Corporation's Articles of Incorporation and Bylaws and the Company's written indemnification agreements in effect at the date hereof and listed on Section 6.10 of the Disclosure Letter, including provisions therein relating to the advancement of expenses) now existing expenses incurred in favor the defense of any action or suit; provided, that in the current event any claim or former directors claims are asserted or officers made within such six year period, all rights to indemnification in respect of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation any such claim or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement claims shall continue until disposition of any and 50 54 all such claims, provided that in full force no event shall the liability of Parent and effect the Surviving Corporation in accordance with their terms subsequent the aggregate under this Section 6.10(a) exceed $115,000,000.00.
(b) Parent shall cause the Surviving Corporation to maintain the Company's existing officers' and directors' liability insurance policy ("D&O INSURANCE") for a period of not less than six years after the Effective Time, but only to the extent related to actions or omissions prior to the Effective Time. Further; provided, that the Certificate Surviving Corporation may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; provided further, that the annual premiums to be paid with respect to the maintenance of such D&O Insurance during such six year period shall not exceed two hundred percent (200%) of the premium paid by the Company for such D&O Insurance during the year ended December 31, 2000, it being agreed and understood that if such policies cannot be obtained at such cost, Parent shall cause the Surviving Corporation to obtain as much of such policies as can be obtained at a cost equal to such amount.
(c) The Articles of Incorporation and By-laws Bylaws of the Company after the Effective Time Surviving Corporation and each subsidiary thereof shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently currently set forth in the Certificate of Incorporation and By-laws Bylaws of the CompanyCompany and any Company Subsidiary, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shallindividuals who, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, howeverwere Indemnified Parties, that in no event unless such modification shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for by Law. Notwithstanding the tail policy or an amount per year equal to 300% of current annual premiums paid by foregoing, the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and Surviving Corporation shall not be obligated to maintain the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns provisions of the Company, 's and shall be enforceable by the Indemnified D&O. The provisions Company Subsidiaries' Bylaws and Articles of this Section 10.06 are intended to be Incorporation that provide for the benefit of, indemnification of directors and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are officers in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisetheir capacities as stockholders.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. For six (a6) The years after the Effective Time, Parent shall, and shall cause the Surviving Entity and its Subsidiaries to, honor and fulfill in all respects the obligations of the Company agrees that and its Subsidiaries under any and all rights to indemnification Contracts between the Company or any of its Subsidiaries and exculpation from liabilities for acts any of their respective current or omissions occurring at 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 (and rights the "Indemnified Parties"). In addition, for advancement a period of expensessix (6) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to years following the Effective Time. Further, Parent shall (and shall cause the Certificate Surviving Entity and its Subsidiaries to) cause the certificate of Incorporation incorporation and By-laws bylaws (and other similar organizational documents) of the Company after the Effective Time shall Surviving Entity and its Subsidiaries to contain provisions no less favorable with respect to indemnification, exculpation and advancement of expenses that are at least as favorable as the indemnification, exculpation and exculpation advancement of former or present directors and officers than are presently set forth expenses provisions contained in the Certificate certificate of Incorporation incorporation and By-laws bylaws (or other similar organizational documents) of the CompanyCompany and its Subsidiaries as of the date hereof, which and during such six (6) year period, 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 adversely affect the rights thereunder of any individuals who were covered by such individuals, except provisions. Prior to or as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if availableParent shall purchase a six-year "tail" prepaid policy on the Company's existing directors' and officers' liability insurance ("D&O Insurance") in respect of acts or omissions occurring at or prior to the Effective Time, and shall contain substantially covering each person covered by the same coverage and amount as, and contain D&O Insurance on terms and conditions no less advantageousfavorable, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that Insurance. Parent and the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms Entity shall maintain such "tail" policy in full force and conditions that are not materially less favorable), in either case with respect effect and continue to matters occurring prior to the Effective Timehonor their respective obligations thereunder; provided, however, that in no event shall the Company be required to expend pursuant to satisfying its obligations under this Section 10.06(b6.14(b), Parent and the Surviving Entity shall not be obligated to pay in excess of three (3) more than $2,500,000 as a premium for times the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for coverage for its last full fiscal year (such insurance aggregate amount, the "Maximum Premium") (which premiums annual premium for the last full fiscal year the Company represents and warrants to be $940,000 as set forth in Section 6.14 of the aggregateCompany Disclosure Schedule), as provided that if the case may be.
(c) In cost of such "tail" insurance coverage exceed the event Maximum Premium, Parent and the Company Surviving Entity shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium. If Parent or the Surviving Entity or any of its successors or assigns shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, such surviving corporation shall expressly assume all of the obligations of Parent and the Surviving Entity set forth in this Section 10.06.
6.14. The obligations under this Section 6.14 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Party (dor any other person who is a beneficiary under "tail" policy referred to in Section 6.14(b) This hereof (and their heirs and representatives)) without the prior written consent of such affected Indemnified Party or other person who is a beneficiary under the "tail" policy referred to in Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company 6.14(b) hereof (and each Indemnified D&O, shall be binding on all successors their heirs and assigns representatives). Each of the Company, Indemnified Parties or other persons who are beneficiaries under the "tail" policy referred to in Section 6.14(b) hereof (and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 their heirs and representatives) are intended to be for third party beneficiaries of this Section 6.14, with full rights of enforcement as if a party thereto. The rights of the benefit of, Indemnified Parties (and will other persons who are beneficiaries under the "tail" policy referred to in Section 6.14(b) hereof (and their heirs and representatives)) under this Section 6.14 shall be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person persons may have under the certificate or articles of incorporation, bylaws or other equivalent organizational documents, any and all indemnification agreements of or entered into by contract the Company or otherwiseany of its Subsidiaries, or applicable Legal Requirements (whether at law or in equity).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company Purchaser Parties (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties in effect on the date hereof and disclosed in Schedule 7.7(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Reincorporation Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanyPurchaser Parties to the extent permitted by applicable Law. The provisions of this Section 7.7 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period of six years from the Effective TimeClosing Date, for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for amount in excess of 200% of the tail policy or an amount per year equal to 300% of current annual premiums annum the Parent paid by the Company for in its last full fiscal year, which amount is set forth in Schedule 7.7(b). Parent shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and cause the aggregate), as the case may beother Purchaser Parties to honor all obligations thereunder.
(c) In On the event Closing Date, the Company or any of its successors or assigns (i) consolidates Purchaser shall enter into customary indemnification agreements reasonably satisfactory to all parties with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations individuals set forth in this Section 10.06.
(d) This Section 10.06 on Schedule 7.7(c), which indemnification agreements shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for effective following the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseClosing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification From and exculpation from liabilities for acts or omissions occurring at or prior to after the Effective Time Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) indemnify and rights for hold harmless, against any costs or expenses (including attorney’s fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Claim and provide advancement of expenses) now existing in favor of the current or former expenses to, all past and present directors or and officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company Subsidiaries (in all of their capacities) to the same extent such persons are indemnified or have the right to advancement of expenses as in effect on of the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent by the Company pursuant to the Effective Time. FurtherCompany’s Constituent Documents and indemnification agreements, if any, in existence on the Certificate of Incorporation date hereof with any directors and By-laws officers of the Company after and the Effective Time shall contain provisions no less favorable with respect Company Subsidiaries, and (ii) cause to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ and officers’ liability insurance which shall be in effect for a period of six years from and fiduciary liability insurance maintained by the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies Company (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to Claims arising from facts or events that occurred on or before the Effective Time; providedTime (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), however, provided that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid the amount expended by the Company for such insurance (which premiums and the Company represents Subsidiaries to maintain or procure such directors’ and warrants officers’ insurance liability insurance and fiduciary liability insurance immediately prior to be $940,000 in the aggregate), as the case may beEffective Time.
(cb) In If the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, Surviving Corporation shall assume all of the obligations set forth in this Section 10.066.10.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Pediatric Services of America Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to keep in full force and effect, and comply with the terms and conditions of, and continue to honor the obligations of, (i) any agreement in effect as of the date of this Agreement between or among the Company agrees that and any Person who served as a director or officer of the Company at or before the Effective Time (the “D&O Indemnified Persons”) providing for the indemnification of such D&O Indemnified Person; (ii) all rights to indemnification and exculpation from liabilities for acts all limitations of Liability existing in favor of the D&O Indemnified Persons as provided in the Company's certificate of incorporation or omissions bylaws as in effect as of the date of this Agreement with respect to matters occurring at or prior to the Effective Time Time, without regard to (and rights for advancement without any prejudice from) any subsequent amendment to the Company's certificate of expenses) now existing in favor incorporation or bylaws or the merger of the current Surviving Corporation into Parent or former directors or officers of any other Entity, and (iii) the Company “tail” policy (the “Indemnified D&OsTail Policy”) as provided in its Certificate on the current policies of Incorporation or By-laws directors' and any indemnification or other agreements of officers' liability insurance maintained by the Company as in effect on the date as of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b“D&O Policy”) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain on terms and conditions no less advantageous, in the aggregate, advantageous to such D&O Indemnified Persons than the coverage provided in the such D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies Policy (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 which are not materially no less favorable), in either case with respect to matters occurring prior advantageous to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregateinsured), as the case may be.
(cb) In Notwithstanding anything to the event contrary in this Agreement, this Section 7.6 shall survive the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns consummation of the Company or Merger at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each D&O Indemnified D&OPersons, shall be binding on all successors Parent and assigns of the Company, Surviving Corporation and shall be enforceable by the D&O Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisePersons.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts bylaws (or omissions occurring at or prior to the Effective Time (and rights for advancement of expensescomparable organizational documents) now existing in favor of the current Surviving Corporation shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the bylaws (or former directors or officers of the Company (the “Indemnified D&Os”comparable organizational documents) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Company shall, at its option, either (A) purchase a tail policy and the Surviving Corporation shall use commercially reasonable efforts to indemnify the current directors and officers and any other Party that has participated in the Transactions against any liability arising out of directors’ and officers’ liability insurance which shall be in effect for a period of six years from matters occurring prior to the Effective Time, if availableincluding acts or omissions occurring in connection with this Agreement and the consummation of the Transactions. To the extent commercially reasonable, and the Company may and, at Parent’s request, the Company shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, purchase insurance policies with respect to its indemnification obligations set forth in the aggregateprevious sentence. If such policies have been obtained by the Company prior to the Effective Time, than the coverage provided Surviving Corporation shall maintain such policies in the D&O Insurance Policies or (B) full force and effect. The Surviving Corporation shall use its commercially reasonable best efforts to maintain in effect for six (6) years from the Effective Time, if available, the D&O Insurance Policies 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 (provided the parties covered thereby, the “Indemnified Parties”); provided, however, that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Company Surviving Corporation be required to expend pursuant to this fourth sentence of Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 US$115,000 in the aggregate). In addition, as the case Company may beand, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms and 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 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 of Parent or Surviving Corporation under this Section 6.05(b) shall terminate.
(c) In Subject to the event terms and conditions of this Section 6.05, from and after the Effective Time, the Surviving Corporation shall comply with all of its obligations, and shall cause the Company Subsidiaries to comply with their respective obligations, to indemnify and hold harmless (including any obligations to advance funds for expenses) (i) the 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 any acts or omissions occurring or alleged to have occurred prior to or at the Effective Time, to the extent provided under the Company’s or such Company Subsidiaries’ 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 URBCA 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 successors Company Subsidiary if such service was at the request or assigns (i) consolidates with or merges into any other Person and shall not be for the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns benefit of the Company or at CIG’s optionany Company Subsidiary; provided that, CIGin the case of each of (i) and (ii), such person (x) acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company or the relevant Company Subsidiary, and (y) shall assume have complied with the obligations set forth in provisions of Section 6.05(d); 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 (2) a written undertaking by such person 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 10.066.05(c). Notwithstanding anything in the foregoing to the contrary, no indemnification shall be made (whether under this Section 6.05(c), the Company’s or any Company Subsidiary’s organizational and governing documents, any existing indemnification agreements or otherwise) in respect of any Action as to which a person seeking indemnification shall have been adjudged by a court, tribunal or other Governmental Authority of competent jurisdiction (A) to be liable to the Company or any Company Subsidiary, or (B) that such person’s actions, or omissions to act, constitute: (1) a violation of Law, unless such person had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful, (2) a transaction from which such person derived an improper personal benefit, or (3) willful misconduct or a conscious disregard for the best interests of the Company or any Company Subsidiary.
(d) This 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 10.06 6.05(c), the Company’s or any Company Subsidiary’s organizational and governing documents, or any existing indemnification agreements, the person seeking indemnification shall continue notify the Surviving Corporation promptly, but in effect subsequent 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, but not the obligation, 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 Effective Time, is intended person seeking indemnification for any fees of counsel subsequently incurred by such person with respect to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisesame Action.
Appears in 1 contract
Samples: Merger Agreement (Sino Gas International Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company SPAC (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and SPAC in effect on the date hereof, shall survive the Acquisition Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Acquisition Merger Effective Time. Further, PubCo shall cause the Certificate Organizational Documents of Incorporation PubCo and By-laws of the Company after the Effective Time shall Merger Sub 2 to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate Organizational Documents of Incorporation SPAC to the extent permitted by applicable Law. The provisions of this Section 8.7 shall survive the Acquisition Closing and By-laws are intended to be for the benefit of, and shall be enforceable by, each 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 any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company PubCo and Merger Sub 2 shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period of six years from the Effective TimeClosing Date, for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than SPAC’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case best available coverage; with respect to matters occurring prior to the Effective Time; providedcurrent or former directors and officers of SPAC, however, provided that in no event shall the Company PubCo be required to expend for such policies pursuant to this Section 10.06(b8.7(b) more than $2,500,000 as a an annual premium for the tail policy or an amount per year equal to in excess of 300% of current annual premiums paid the amount per annum payable by SPAC under its currently effective D&O insurance policies as of the Company for date of this Agreement. PubCo shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and cause its Subsidiaries to honor all obligations thereunder. If any claim is asserted or made within such six-year period, the aggregate), as provisions of this Section 8.7 shall be continued in respect of such claim until the case may befinal disposition thereof.
(c) PubCo shall enter into indemnification agreements, dated on or prior to the Closing Date, with each member of the board of directors of PubCo.
(d) Notwithstanding anything contained in this Agreement to the contrary, this Section 8.7 shall survive the Acquisition Merger Effective Time indefinitely and shall be binding, jointly and severally, on all successors and assigns of the Surviving Company. In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other another Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or at CIG’s option, CIG, shall assume succeed to the obligations set forth in this Section 10.068.7.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification articles of incorporation and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and Byby-laws of the Company after following the Effective Time Mergers shall contain provisions no less favorable identical with respect to indemnification, advancement elimination of expenses personal liability and exculpation of former or present directors and officers than are presently indemnification to those set forth in Article V of the Certificate articles of Incorporation incorporation of the Company and ByArticle V of the by-laws of the Company, respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time of the Acquisition Merger in any manner that would adversely affect the rights thereunder of any such individualsindividuals who at the Effective Time of the Reorganization Merger or the Effective Time of the Acquisition Merger were directors, except as amendments may be required by officers, agents or employees of the DGCL during such periodCompany or Parent.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time of the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor Acquisition Merger policies of at least the same coverage directors' and officers' liability insurance containing terms 37 and conditions that which are not materially less favorable)advantageous than those policies maintained by the Company at the date hereof, in either case with respect to matters occurring prior to the Effective TimeTime of the Acquisition Merger, to the extent available, and having the maximum available coverage under the current policies of directors' and officers' liability insurance; provided, however, provided that in no event shall (i) the Company following the Acquisition Merger shall not be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or spend an amount per in any year equal to 300in excess of 150% of current the annual aggregate premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance (which premiums coverage exceed such amount, the Company represents and warrants shall be obligated to be $940,000 obtain a policy with the best coverage available, in the aggregate)reasonable judgment of the Board of Directors of Parent following the Acquisition Merger, as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person for a cost not exceeding such amount, and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and such policies may in each such case, proper provision shall be made so that the successors and assigns sole discretion of the Company be one or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on more "tail" policies for all successors and assigns or any portion of the Companyfull six year period. The annual premium paid for such insurance in respect of the year ended December 31, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise1998 was $108,000.
Appears in 1 contract
Samples: Merger Agreement (St John Knits Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Buyer will, to the fullest extent permitted by Law, cause the Surviving Corporation (from and after the Effective Time) to honor all of the Company's obligations to indemnify, defend and hold harmless (including any obligations to advance funds for expenses) the current and former directors and officers of the Company agrees that and the Company Subsidiaries against all rights to indemnification and exculpation from losses, claims, damages or liabilities for arising out of acts or omissions occurring by any such directors and officers in their capacities as such for their service to the Company and the Company Subsidiaries at or and prior to the Effective Time (and rights for advancement of expenses) now existing in favor of to the current or former directors or officers maximum extent that such obligations of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect exist on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to Agreement. Without limiting the Effective Time. Furtherforegoing, the Certificate of Incorporation and Byby-laws of the Surviving Corporation will contain the provisions that are set forth, as of the date of this Agreement, in Article XI of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the CompanyLaws, which provisions shall will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who at or at any time prior to the Effective Time were directors, officers, employees or other agents of the Company with respect to actions taken or omissions to act in their capacities as such individuals, except as amendments may be required by for their service to the DGCL during such periodCompany and the Company Subsidiaries occurring at or prior to the Effective Time.
(b) The Company shallwill maintain, at its optionthrough the Effective Time, either (A) purchase a tail policy of the Company's existing directors’ ' and officers’ liability ' insurance which in full force and effect without reduction of coverage. Not later than the Effective Time, Buyer (i) shall cause to be in effect purchased (with all premiums prepaid) "tail-end" coverage under such insurance for a period of six five years from after the Effective Time, if available, or substitute "tail-end" coverage with reputable and shall contain financially sound carriers having at least substantially the same coverage and amount as, amounts and contain containing terms and conditions which are in the aggregate substantially no less advantageous, advantageous (provided the premium for such "tail-end" coverage does not exceed the Maximum Premium (as defined below)) with respect to claims arising from or related to acts or omissions by the current and former directors and officers of the Company and the Company Subsidiaries in their capacities as such for their service to the aggregate, than Company and the coverage provided in the D&O Insurance Policies Company Subsidiaries at or (B) use its reasonable best efforts to maintain in effect for six years from before the Effective Time, and (ii) shall either cause the deductibles or retentions thereunder directly or indirectly payable by individual directors and officers to be reduced to zero or, if availablepracticable, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing cause to be established and funded an irrevocable trust so as to eliminate such deductible or retention on terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior reasonably satisfactory to the Effective TimeCompany; provided, however, that in no event shall the Company Buyer will not be required obligated to expend pursuant to this Section 10.06(b) more than $2,500,000 as make a premium payment for such insurance coverage to the tail policy or an amount per year equal to 300extent such premium exceeds 200% of current the annual premiums paid as of the date hereof by the Company for such insurance multiplied by the five years of coverage (which such 200% amount, the "Maximum Premium"). If such insurance coverage cannot be obtained at all, or can only be obtained at a premium in excess of the Maximum Premium, not later than the Effective Time Buyer will cause to be purchased (with all premiums prepaid) the most advantageous five-year policy of directors' and officers' insurance obtainable for a premium equal to the Maximum Premium. The Company represents to Buyer that the last annual premium paid prior to the date of this Agreement for the Company's existing directors' and warrants to be officers' insurance policy was $940,000 in the aggregate), as the case may be70,000.
(c) In If the event the Company Surviving Corporation (or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (iiassigns) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall will be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall Surviving Corporation assume the obligations set forth in this Section 10.066.04.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights GABC and German American shall indemnify and hold harmless (including the advancement of expenses as incurred) each present and former director and officer of ACBP and its subsidiaries, including Bank of Evansville (each, an “Indemnified Party”) following the Effective Time, 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 indemnification and exculpation from liabilities for acts matters existing or omissions occurring at or prior to the Effective Time Time, whether asserted or claimed prior to, at or after the Effective Time, to the same extent (and rights for advancement of expenses) now existing in favor subject to the making of the current same findings as to eligibility for such indemnification) that such Indemnified Party would have been indemnified as a director, officer or former directors employee of ACBP or officers any of the Company (the “Indemnified D&Os”) as provided in its Certificate subsidiaries under Indiana law or ACBP’s or any such subsidiaries’ articles of Incorporation incorporation, charter or By-laws and any indemnification or other agreements of the Company bylaws as in effect on as of the date of this Agreement Agreement.
(b) GABC and German American shall continue in full force cause the persons serving as officers and effect in accordance with their terms subsequent directors of ACBP and its subsidiaries (including Bank of Evansville) immediately prior to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect Closing to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified covered for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from policy currently maintained by ACBP (the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B“Existing Policy”) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation GABC and German American may substitute therefor policies of at least providing comparable or better coverage than the same coverage containing terms and conditions that are not materially less favorable), in either case Existing Policy) with respect to matters acts or omissions occurring prior to the Effective TimeTime which were committed by such officers and directors in their capacity as such; provided, however, that in no event GABC and German American shall the Company not be required to expend pursuant to this Section 10.06(bpay annual premiums for the Existing Policy (or for any substitute policies) more than $2,500,000 as a in excess of 200% of the annual premium for the tail policy or an amount per year equal to 300% of current annual premiums paid term of the Existing Policy (the “Maximum Amount”); and, provided further, however, that, if notwithstanding the use of reasonable best efforts to do so GABC and German American are unable to maintain or obtain the insurance called for by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregatethis Section 5.07(b), GABC and German American shall obtain as much comparable insurance as is available for the case may beMaximum Amount.
(c) The provisions of this Section 5.07 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives.
(d) In the event the Company that either GABC or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personmerger, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.or
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification articles of incorporation and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and Byby-laws of the Company after following the Effective Time Mergers shall contain provisions no less favorable identical with respect to indemnification, advancement elimination of expenses personal liability and exculpation of former or present directors and officers than are presently indemnification to those set forth in Article V of the Certificate articles of Incorporation incorporation of the Company and ByArticle V of the by-laws of the Company, respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time of the Acquisition Merger in any manner that would adversely affect the rights thereunder of any such individualsindividuals who at the Effective Time of the Reorganization Merger or the Effective Time of the Acquisition Merger were directors, except as amendments may be required by officers, agents or employees of the DGCL during such periodCompany or Parent.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time of the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor Acquisition Merger policies of at least the same coverage directors' and officers' liability insurance containing terms and conditions that which are not materially less favorable)advantageous than those policies maintained by the Company at the date hereof, in either case with respect to matters occurring prior to the Effective TimeTime of the Acquisition Merger, to the extent available, and having the maximum available coverage under the current policies of directors' and officers' liability insurance; provided, however, provided that in no event shall (i) the Company following the Acquisition Merger shall not be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or spend an amount per in any year equal to 300in excess of 150% of current the annual aggregate premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance (which premiums coverage exceed such amount, the Company represents and warrants shall be obligated to be $940,000 obtain a policy with the best coverage available, in the aggregate)reasonable judgment of the Board of Directors of Parent following the Acquisition Merger, as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person for a cost not exceeding such amount, and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and such policies may in each such case, proper provision shall be made so that the successors and assigns sole discretion of the Company be one or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on more "tail" policies for all successors and assigns or any portion of the Companyfull six year period. The annual premium paid for such insurance in respect of the year ended December 31, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise1998 was $108,000.
Appears in 1 contract
Samples: Merger Agreement (Gray Robert E)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by law. Parent shall cause the DGCL during Surviving Corporation to indemnify, defend and hold harmless, the current and former officers, directors, employees and agents of the Company or any of its Subsidiaries in their capacities as such periodin accordance with the Certificate of Incorporation and By-laws, or other charter documents, of the Company and its Subsidiaries and any agreements or plans maintained by the Company and its Subsidiaries, to the fullest extent permitted by the terms thereof against all losses, expenses, claims, damages and liabilities arising out of actions or omissions occurring on or prior to the Effective Time.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company covering each person covered thereby immediately prior to the consummation of the Offer (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300175% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 90,000 in the aggregate), and if the Surviving Corporation is unable to obtain the full amount of insurance that is required by this paragraph, it shall obtain as the case may bemuch comparable insurance for such covered persons as possible for an annual premium equal to such maximum amount.
(c) In the event Parent or the Company Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Company or at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume the obligations set forth in this Section 10.067.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Intermagnetics General Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Closing, each of the Company and PubCo agrees that all rights it shall, to indemnification the fullest extent permitted under applicable Law, indemnify and exculpation from hold harmless each present and former director and officer of the (x) Company and each of its Subsidiaries (in each case, solely to the extent acting in their capacity as such and to the extent such activities are related to the business of the Company being acquired under this Agreement) (the “Company Indemnified Parties”) and (y) each Parent Party (the “Parent Indemnified Parties” together with the Company Indemnified Parties, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities for acts incurred in connection with any Legal Proceeding, whether civil, criminal, administrative or omissions investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time (Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Company, PubCo, Parent or their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and rights for advancement each of expenses) now existing in favor their respective memorandum and articles of the current or former directors or officers associations, certificate of the Company (the “Indemnified D&Os”) as provided in its Certificate incorporation, certificate of Incorporation or By-laws and any indemnification formation, bylaws, limited liability company agreement or other agreements of the Company as organizational documents in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the Effective Timefullest extent permitted under applicable Law). FurtherWithout limiting the foregoing, PubCo and the Certificate Company shall, and shall cause their Subsidiaries to (i) maintain for a period of Incorporation not less than six (6) years from the Closing provisions in their respective Organizational Documents concerning the indemnification and By-laws exoneration (including provisions relating to expense advancement) of the Company after the Effective Time shall contain provisions Company’s, Parent’s and their Subsidiaries’ former and current officers, directors, employees, and agents that are no less favorable with respect to indemnification, advancement those Persons than the provisions of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws Organizational Documents of the Company, which provisions shall PubCo or their respective Subsidiaries, as applicable, in each case, as of the date of this Agreement, and (ii) not be amendedamend, repealed repeal or otherwise modified for a period of six years from the Effective Time modify such provisions in any manner respect that would adversely affect the rights thereunder of any such individualsthose Persons thereunder, in each case, except as amendments may be required by the DGCL during such periodapplicable Laws.
(b) The Company shallFor a period of six (6) years from the Closing, at its option, either (A) purchase a tail policy of PubCo shall maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by Parent’s, the Company’s or their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which shall be in effect for a period of six years from have been heretofore made available to the Effective TimeCompany, if availableParent or their respective Representatives, and shall contain substantially the same coverage and amount as, and contain as applicable) on terms and conditions no not less advantageous, in the aggregate, favorable than the terms of such current insurance coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect acceptable to matters occurring the directors and officers of Parent immediately prior to the Effective Time; provided, howeverthat (i) PubCo may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six (6) year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Closing and (ii) if any claim is asserted or made within such six (6) year period, that in no event shall the Company be any insurance required to expend pursuant to be maintained under this Section 10.06(b) more than $2,500,000 as a premium for 6.7 shall be continued in respect of such claim until the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may befinal disposition thereof.
(c) In Notwithstanding anything contained in this Agreement to the contrary, (i) this Section 6.7 shall survive the Closing indefinitely and shall be binding, jointly and severally, on PubCo, Parent and the Company and all of their respective successors and assigns; and (ii) in the event that PubCo, Parent or the Company or any of its their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, each of PubCo, Parent, and the Company shall ensure that proper provision shall be made so that the successors and assigns of the Company or at CIG’s optionPubCo, CIGParent and the Company, as applicable, shall assume succeed to the obligations set forth in this Section 10.066.7.
(d) This Section 10.06 shall continue in effect subsequent to Upon the Effective Time, is intended PubCo shall enter into customary indemnification agreements reasonably satisfactory to benefit each of the Company and each Indemnified D&O, shall be binding on all successors Parent with the directors and assigns officers of PubCo after the consummation of the Companybusiness combination contemplated hereby, and which indemnification agreements shall continue to be enforceable by effective following the Indemnified D&O. Closing.
(e) The provisions of this Section 10.06 6.7: (i) are intended to be for the benefit of, and will shall be enforceable by, each Person who is now, or who has been at any time prior to the date of this Agreement or who becomes prior to the Closing, a D&O Indemnified D&OParty, his or her heirs, heirs and his or her representatives personal representatives, (ii) shall be binding on PubCo, Parent and the Company and their respective successors and assigns, (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract have, whether pursuant to Law, Contract, Organizational Documents, or otherwise, and (iv) shall survive the consummation of the business combination and shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party without the prior written consent of such D&O Indemnified Party.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification Certificate of Incorporation and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor By-laws of the current or former Surviving Corporation will contain provisions with respect to exculpation and indemnification at least as favorable to employees, agents, directors or officers of the Company and the Company Subsidiaries (the “Indemnified D&Os”"INDEMNIFIED PARTIES") as those provided in its Certificate the certificate of Incorporation incorporation or Byby-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall 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 Indemnified Parties unless such modification is required by law; provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such individualsclaim or claims shall continue until final disposition of any and all such claims. The foregoing parties are expressly made third party beneficiaries to the provisions of this Section 5.9. Effective after the Closing, except Parent shall guarantee the prompt payment of any obligations of the Company and the Company Subsidiaries to indemnify the Indemnified Parties, and to pay legal and other expenses as amendments may be required by incurred, in accordance with the DGCL during such periodforegoing rights to indemnification or under the indemnification agreements between the Company and its current and former officers and directors.
(b) The Parent agrees that the Company shalland, at its optionand after the Effective Time, either (A) purchase a tail policy of directors’ and officers’ liability insurance which the Surviving Corporation shall cause to be maintained in effect for a period of not less than six years from the Effective Time, if available, Time the current policies of the directors' and shall contain substantially officers' liability insurance maintained by the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (Company; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are at least as favorable and provided that are such substitution shall not materially less favorable), result in either case any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event the annual premium shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300not exceed 175% of current the last annual premiums premium paid by the Company for such prior to the date of this Agreement and if the Surviving Corporation is unable to obtain the insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in required by this Section 10.065.9(b) it shall obtain as much comparable insurance as possible for an annual premium equal to such maximum amount.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that shall cause all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation now existing in favor of any present or former director or present directors and officers than are presently set forth officer of the Company or any of its Subsidiaries (the “D&O Indemnified Parties”) as provided in the Certificate certificate of Incorporation incorporation or bylaws (or similar organizational documents) or in agreements between a D&O Indemnified Party and By-laws the Company or one of its Subsidiaries, in each case, in effect on the Company, which provisions shall not be amended, repealed or otherwise modified Effective Date to continue in full force and effect for a period of not less than six (6) years from after the Effective Time Closing Date, and the Company shall not amend, repeal or otherwise modify any provision in any manner that would adversely affect the rights of such D&O Indemnified Party thereunder of for any such individuals, except as amendments may be required by acts or omissions occurring prior to the DGCL during such periodEffective Date.
(b) After the Closing Date, the Company shall indemnify all D&O Indemnified Parties to the fullest extent permitted by Legal Requirements with respect to all acts and omissions arising out of or relating to their services as directors or officers of the Company or its Subsidiaries occurring prior to the Closing Date.
(c) The Company shallshall (i) maintain in effect for at least six (6) years after the Closing Date, at its optionif available, either (A) purchase a tail policy the current policies of directors’ and officers’ liability insurance which shall be in effect for a period of six years from maintained by the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies Company (provided that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that which are not materially less favorable)advantageous) or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of at least six (6) years from the Closing Date with at least the same coverage and amounts containing terms and conditions which are no less advantageous, in either case each case, with respect to matters occurring prior claims arising out of or relating to events which occurred before or at the Effective Time; provided, however, that in no event shall Closing Date so long as the Company be is not required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a pay an annual premium for the tail policy or an amount per year equal to 300in excess of 200% of current the last annual premiums premium paid by the Company for such insurance prior to the date of this Agreement (which premiums such 200% amount being the “Maximum Premium”). The Company represents that such annual premium amount is set forth in Disclosure Section 3.10. If Company is unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, the Company represents and warrants shall instead obtain as much comparable insurance as possible for an annual premium equal to be $940,000 in the aggregate), as the case may beMaximum Premium.
(cd) The Company shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any indemnitee and/or D&O Insured Party in enforcing the indemnity and other obligations provided hereunder or other applicable indemnification obligation referenced to herein. The covenants contained in this Section 6.17 are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which a D&O Indemnified Party is entitled, whether pursuant to Legal Requirements, contract or otherwise.
(e) In the event that the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Company shall use commercially reasonable efforts to cause proper provision shall provisions to be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.066.17.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit The obligations of the Company under this Section 6.17 shall not be terminated or modified in such a manner as to materially and each Indemnified D&O, adversely affect any indemnitee and/or D&O Insured Party to whom this Section 6.17 applies without the express written consent of such affected indemnitee and D&O Insured Party. It is expressly agreed that the indemnitees and/or D&O Insured Parties to whom this Section 6.17 applies shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions third party beneficiaries of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise6.17.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article 9 of the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by law, and Parent shall cause the DGCL during Surviving Corporation to honor such periodprovisions.
(b) The Company Surviving Corporation shall, at its optionand Parent shall cause the Surviving Corporation to, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.07(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300150% of current annual premiums premiums, adjusted to reflect any increase in the Consumer Price Index over such six-year period, paid by the Company for such insurance (which premiums the insurance. The Company represents and warrants to be that the current annual premiums are $940,000 144,475 in the aggregate), as the case may be.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.067.07.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Chirex Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article Eight of the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who at the Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by law. To the DGCL during extent that the obligations under such provisions are not fully performed by the Surviving Corporation, Parent agrees to perform fully the obligations thereunder for the remaining period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Parent or the Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for a period of not less than six years from the Effective Time, if available, Time the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that which are not materially less favorable), in either case favorable to such directors and officers) with respect to matters occurring prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that if the existing policies expire, are terminated or cancelled during such period, Parent or Surviving Corporation will use its best efforts to obtain substantially similar policies. Notwithstanding the foregoing, in no event shall Parent or the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.08(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300150% of current annual premiums (the "CURRENT PREMIUMS") paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 180,000 in the aggregate); and, PROVIDED, FURTHER, that if the Parent or the Surviving Corporation is not able to obtain the amount of insurance required by this Section 6.08(b) for such aggregate premium, Parent or the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium of 150% of the case may beCurrent Premiums.
(c) In the event the Company Company, the Surviving Corporation or the Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Company, the Surviving Corporation or at CIG’s optionthe Parent, CIGas the case may be, shall assume the obligations set forth in this Section 10.066.08.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Vivra Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification From and exculpation from liabilities for acts or omissions occurring at or prior to after the Effective Time (Time, Parent shall cause the Surviving Corporation to, fulfill and rights for advancement honor in all respects the obligations of expenses) now existing the Company pursuant to any indemnification, exculpation or advance of expense or similar agreement by the Company or any Company Subsidiary in favor of any Indemnified Person (the current or former directors or officers “Indemnification Agreements”) (and all other indemnification agreements of the Company (that are on terms substantially similar to the “Indemnified D&Os”Indemnification Agreements) as provided in its and any indemnification, exculpation or advancement of expenses provisions under the Certificate of Incorporation or By-laws and any indemnification Bylaws (or other agreements of the Company comparable organizational documents) as in effect on the date of this Agreement Agreement; provided, that such obligations shall continue in full force and effect in accordance with their terms subsequent be subject to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect any limitation imposed from time to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such periodtime under applicable Law.
(b) The Prior to the Effective Time, the Company shall, and for six (6) years after the Effective Time, Parent shall cause the Surviving Corporation to, provide officers’ and directors’ liability, fiduciary liability and similar insurance (collectively, “D&O Insurance”) in respect of acts or omissions occurring prior to the Effective Time covering each Indemnified Person covered as of the date of this Agreement by the Company’s D&O Insurance policies on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date of this Agreement; provided, that, in satisfying its obligation under this Section 7.4(b), the Surviving Corporation shall not be obligated to pay annual premiums in the aggregate in excess of 300% of the amount per annum the Company paid in its last full fiscal year, which amount the Company is set forth in Section 7.4(b) of the Disclosure Schedule (provided, that if the annual premium of such insurance coverage exceeds such amount, the Surviving Corporation shall be obligated to obtain the most advantageous policies available for an annual premium equal to such amount). Notwithstanding the foregoing, at its optionany time Parent or the Surviving Corporation may, either and prior to the Acceptance Date, the Company may, with the prior written consent of Parent (A) which shall not be unreasonably withheld, delayed or conditioned), purchase a tail policy of “tail” directors’ and officers’ liability insurance which policy, covering the same persons and providing the same terms with respect to coverage and premium amount as aforesaid, and that by its terms shall be in effect for a period provide coverage until the sixth annual anniversary of six years from the Effective Time, if availableand, upon the purchase of such insurance, Parent’s and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior Corporation’s obligations pursuant to the Effective Time; provided, however, first sentence of this Section 7.4(b) shall be deemed satisfied for so long as such insurance is in full force and effect and covers the matters that in no event shall the Company would otherwise be required to expend covered pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate7.4(b), as the case may be.
(c) In The rights of each Indemnified Person under this Section 7.4 shall survive consummation of the event Merger and are intended to benefit, and shall 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 other rights to which each Indemnified Person is entitled, whether pursuant to Law, Contract or otherwise. The obligations of Parent and the Company Surviving Corporation under this Section 7.4 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 7.4 applies without the consent of such affected Indemnified Person. Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and other obligations provided in this Section 7.4.
(d) If (1) Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or the 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 or (2) Parent or any of its successors or assigns dissolves the Surviving Corporation, 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 at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume the obligations set forth in this Section 10.067.4.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Purchaser Parties and the Company Group (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties or the Company Group, as the case may be, in effect on the date hereof and disclosed in Appendix I, shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Reincorporation Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanyPurchaser Parties to the extent permitted by applicable Law. The provisions of this Section 7.7 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at its optionor shall cause PubCo to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a period “tail” insurance policy that provides coverage for the benefit of six years from the Effective TimeD&O Indemnified Persons (the “D&O Tail Insurance”) through the sixth anniversary of the Closing Date that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for amount in excess of 200% of the tail policy or an amount per year equal to 300% of current annual premiums annum the Parent paid by the Company for in its last full fiscal year, which amount is set forth in Appendix I. Parent shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and cause the aggregate), as the case may beother Purchaser Parties to honor all obligations thereunder.
(c) In On or before the event Closing Date, the Company or any Purchaser shall enter into customary indemnification agreements reasonably satisfactory to all parties with such Directors and Officers of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets PubCo appointed pursuant to any PersonSection 3.3, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 which indemnification agreements shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for effective following the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseClosing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. The Surviving Corporation shall, and Warner-Lambert shall cause the Surviving Corporation to, (ai) The Company agrees that indemnify axx xxxx xxxxxxss, and provide advancement of expenses to, all rights past and present directors, officers and employees of Agouron and its Subsidiaries to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Agouron pursuant to Agouron's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any directors, officers and exculpation from liabilities employees of Agouron and its Subsidiaries for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws consummation of the Company after the Effective Time shall contain provisions no less favorable with respect transactions contemplated hereby), and (ii) cause to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ ' and officers’ ' liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies fiduciary liability insurance maintained by Agouron (provided that the Surviving Corporation (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or in any one year an amount per year equal to 300in excess of 200% of current the annual premiums currently paid by the Company Agouron for such insurance (which insurance; and, provided, further, that if the annual premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personinsurance coverage exceed such amount, then, and in each such case, proper provision the Surviving Corporation shall be made so that obligated to obtain a policy with the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06greatest coverage available for a cost not exceeding such amount.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Warner Lambert Co)
Directors’ and Officers’ Indemnification and Insurance. From and after the Effective Time the Parent agrees that it will indemnify and hold harmless, against any costs or expenses (including attorney's fees), judgments, fines, losses, claims damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to all directors of the Company (a) The to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company agrees that all rights pursuant to the Company's certificate of incorporation, bylaws and indemnification agreements, if any, in existence on the date hereof with any directors, and exculpation from liabilities (b) to the fullest extent permitted by law for acts or omissions occurring while serving in their capacity as directors of the Company at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and rights for advancement of expenses) now existing in favor the consummation of the current transactions contemplated hereby). Parent will maintain for a period of not less than five years from the Effective Time a D&O Insurance policy (or former a policy providing substantially similar coverage as the coverage currently provides) (the "D&O Insurance") for all persons who are directors or and officers of the Company (and its Subsidiaries covered by the “Indemnified D&Os”) Parent's D&O Insurance as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect Effective Time on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions Agreement; PROVIDED that Parent shall not be amended, repealed or otherwise modified required to spend as an annual premium for a period such D&O Insurance an amount in excess of six years from 200% of the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be annual premium paid for D&O Insurance in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timedate of this Agreement; provided, however, and PROVIDED FURTHER that in no event Parent shall the Company nevertheless be required obligated to expend pursuant to this Section 10.06(b) more than $2,500,000 provide such coverage as a premium may be obtained for such amount (including purchasing tail coverage for the tail policy or an amount per remainder of the five year equal period to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity extent 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 at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, amount if insurance is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. not otherwise available). The provisions of this Section 10.06 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified D&O, his or her heirs, indemnified party and his or her representatives heirs and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiserepresentatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. For a period of not less than six (a6) The Company agrees that all rights to indemnification years after the Closing Date, the Buyer shall not, and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor shall cause each of the current Target Companies not to, amend, repeal or former directors or officers of otherwise modify the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation Charter or By-laws and of any indemnification or other agreements of Target Company in any manner that would affect adversely the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect rights to indemnification, advancement of expenses and exculpation of former or present directors and officers of any Target Company. The Buyer agrees to cause the Target Companies to maintain in effect (a) for not less than are presently set forth in the Certificate of Incorporation and By-laws of the Company, 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 Closing Date the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ and officers’ liability insurance which shall be in effect for a period of six years from maintained by the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies Target Companies (provided that the Surviving Corporation Target Companies may substitute therefor policies of at least the same coverage containing terms and conditions that are no less advantageous to such directors and officers) with respect to acts or omissions occurring on or prior to the Closing Date, and (b) for not materially less favorable)than six (6) years from the Closing Date, in either case employment practices liability insurance with respect to matters occurring on or prior to the Effective TimeClosing Date with respect to the Target Companies; provided, however, that in no event shall lieu of the foregoing, the Buyer or the Target Companies may, and if requested by the Buyer prior the Closing Date, the Company shall, and shall cause its Subsidiaries to, purchase a six (6) year tail policy that provides coverage in all material respects identical to the coverage described in clauses (a) and (b) of this Section 6.7; provided, further, that in connection with this Section 6.7, neither the Buyer nor any Target Company shall be required or permitted to expend pursuant pay a one-time premium or be obligated to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to pay annual premiums in excess of 300% of current the annual premiums currently paid by the Company Target Companies for such their existing directors’ and officers’ liability insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) employment practices liability insurance. This Section 10.06 6.7 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified D&Othe current or former directors and officers of the Target Companies, his or her and their respective heirs, executors, administrators and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseestates.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights By virtue of the occurrence of the Integrated Mergers, EQBK and Equity Bank shall, from and after the Effective Time, succeed to Xxxxx’x and the Bank’s obligations with respect to indemnification and or exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers directors, officers, employees and agents of Xxxxx and the Company (the “Indemnified D&Os”) Bank, respectively, as provided in its Certificate their articles of Incorporation incorporation, Bylaws, indemnification agreements or By-laws and any indemnification or other agreements of the Company as otherwise in effect on as of the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective TimeTime (collectively, the “Existing Indemnification Obligation”). EQBK hereby guaranties Xxxxx’x indemnification obligations.
(b) Except to the extent prohibited by applicable Law, following the Effective Time and for a period of six (6) years thereafter, EQBK shall indemnify, defend, and hold harmless any Person who has rights to indemnification from the Bank or Xxxxx, under the Existing Indemnification Obligation.
(c) Prior to Closing, EQBK and Equity Bank shall obtain, at the expense of EQBK, a six (6) year tail insurance coverage policy relating to the policies of directors’ and officers’ liability insurance currently maintained by Xxxxx and the Bank as of the date hereof with respect to claims arising from facts or events that occurred on or prior to the Effective Time (including the transactions contemplated hereby) as currently maintained by Xxxxx (“Tail Policy”), on terms no less advantageous than those contained in Xxxxx’x existing directors’ and officers’ and company’s liability insurance policy; provided, however, that in no event EQBK shall the Company not be required obligated to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or expend, on an annual basis, an amount per year equal to 300in excess of 200% of the current annual premiums premium paid as of the date hereof by the Company Xxxxx for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may beinsurance.
(cd) In the event the Company If EQBK or Equity Bank or any of its their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and or assets to any Person, then, and in each such case, proper to the extent necessary, provision shall be made so that the successors and assigns of the Company EQBK or at CIG’s option, CIG, shall Equity Bank expressly assume the obligations set forth in this Section 10.066.13.
(de) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.13 are intended to be for the benefit of, and will shall be enforceable by, each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of Xxxxx or the Bank (the “Indemnified D&O, his or her heirs, Parties”) and his or her heirs and representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Equity Bancshares Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable favorable, taken as a whole, with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article VI of the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300175% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 US$131,920 in the aggregate); PROVIDED, HOWEVER, that in the event of an expiration, termination or cancellation of such current policies, Merger Sub or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for aggregate annual premiums which shall not exceed 175% of current annual premiums paid by the case may beCompany for such insurance.
(c) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company Surviving Corporation or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.066.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Keith Companies Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that Buyer shall (i) for a period of six years from the Effective Time, indemnify and hold harmless against all rights losses, claims, damages, expenses or liabilities, and provide advancement of expenses to, all past and present directors, officers, managers and employees of each of the Acquired Companies (in all of their capacities as such) (“Indemnified Individuals”), to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by any of the Acquired Companies pursuant to the respective limited liability company agreements of the Acquired Companies and any indemnification and exculpation from liabilities agreements in existence on the date hereof with any such Indemnified Individuals for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with this Agreement and rights for advancement of expenses) now existing in favor the consummation of the current transactions contemplated hereby), provided that in the event any claim is asserted or former directors or officers made within such six year period, all rights hereunder in respect of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement such claim shall continue in full force until disposition thereof and effect in accordance with their terms subsequent (ii) cause to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ and officers’ liability insurance which shall be in effect for a period and fiduciary liability insurance maintained by any of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies Acquired Companies (provided that the Surviving Corporation Buyer may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured than the current policies maintained by any of the Acquired Companies) with respect to matters occurring prior to claims arising from facts or events that occurred at or before the Effective Time; provided, however, that in no event shall the Company Buyer be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or in any one year an amount per year equal to 300in excess of 175% of current the annual premiums currently paid by the Company Acquired Companies for such insurance (which and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Buyer shall be obligated to obtain a policy with the Company represents and warrants greatest coverage available to be $940,000 in the aggregate), as the case may bea cost not exceeding such amount.
(cb) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 9.14 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified D&O, his or her heirs, Individual and his or her representatives heirs and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiselegal representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The memorandum and articles of association of the Surviving Company agrees that all rights shall contain provisions no less favorable with respect to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for exculpation, advancement of expenses) now existing expenses and indemnification than are set forth in favor the memorandum and articles of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shallshall maintain in effect for six (6) years from the Effective Time, at its option, either (A) purchase a tail policy of the current directors’ and officers’ liability insurance which shall be in effect for a period of six years from policies maintained by the Company with respect to matters occurring prior to the Effective Time, if available, including acts or omissions occurring in connection with this Agreement and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in consummation of the aggregate, than Transactions (the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableparties covered thereby, the D&O Insurance Policies (provided “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums insurance. In addition, the Company represents 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 warrants conditions no less advantageous to be $940,000 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 aggregate)respective obligations thereunder, as the case may beand all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) From and after the Effective Time, the Surviving Company shall comply with all of the Company’s obligations, and 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 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 such Person is or was a director, officer or employee of the Company or such Subsidiary, or (B) any acts or omissions occurring or alleged to have occurred 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 and to the fullest extent permitted by the CICL or any other applicable Law, 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 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) shall use commercially reasonably 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. The right of the Surviving Company (or a subsidiary nominated by it), if any, to participate in and/or assume the defense of any Action in respect of which indemnification is sought under Section 6.05(c) shall be determined in accordance with the applicable agreement or document providing for such indemnification.
(e) In the event the Company or the Surviving Company or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(g) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company Parent Parties and the Company, as applicable (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the Signing Date, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Parent Parties and the Company, as applicable in effect on the date of this Agreement hereof and disclosed in Schedule 7.7(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation PubCo and By-laws of the Company after the Effective Time shall Surviving Corporation to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the Signing Date in the Certificate Organizational Documents of Incorporation the Parent Parties and By-laws of the Company, which as applicable, to the extent permitted by applicable Law. The provisions of this Section 7.7 shall not survive the Closing and are intended to be amendedfor the benefit of, repealed or otherwise modified for a period and shall be enforceable by, each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at its option, either (A) purchase a tail policy For the benefit of directorsthe Parent Parties’ director and officers’ liability insurance which , the Purchaser shall be in effect permitted prior to the Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period of six years from and after the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect Closing Date for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters events occurring prior to the Effective TimeClosing Date (the “Purchaser D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if substantially equivalent insurance coverage is unavailable, comparable coverage; provided, however, provided that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for the tail policy or an amount per year equal to 300in excess of 250% of current annual premiums the amount of per annum Parent paid by in its last full fiscal year, which amount is set forth in Schedule 7.7(b). For purpose of this Agreement, the purchase of such Purchaser D&O Tail Insurance shall be treated as an expense of the Parent Parties which is to be reimbursed pursuant to Section 7.6(iv) hereof. If obtained, the Company for shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and to cause the aggregate), as the case may beSurviving Corporation to honor all obligations thereunder.
(c) In For the event benefit of the Company’s directors and officers, the Company or shall be permitted prior to the Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period from and after the Closing Date for events occurring prior to the Closing Date (the “Company D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the Company’s existing policy or, if substantially equivalent insurance coverage is unavailable, comparable coverage; provided that in no event shall the Company be required to expend for such policies pursuant to this Section 7.7(c) an annual premium amount in excess of $500,000. If obtained, the Company shall cause such D&O Tail Insurance to be maintained in full force and effect, for its successors or assigns (i) consolidates with or merges into any other Person full term, and shall not be cause the continuing or surviving corporation or entity Surviving Corporation to honor all obligations thereunder. For the purpose of this Agreement, the purchase 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 Company D&O Tail Insurance shall be made so that the successors and assigns of the Company or at CIGtreated as a Company’s option, CIG, shall assume the obligations set forth in this Section 10.06closing expense.
(d) This Section 10.06 On the Closing Date, PubCo shall enter into customary indemnification agreements reasonably satisfactory to the Parent Parties and to the Company with the individuals elected as executive officers and members of the board of directors of the PubCo as of the Closing, which indemnification agreements shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for effective following the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseClosing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The From and after the Effective Time, Parent shall provide exculpation and indemnification for each person who is now or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company agrees or any Subsidiary of the Company (the "Company Officers or Directors") that all rights is the same as the exculpation and indemnification provided to the Company Officers or Directors by the Company (including advancement of expenses, if so provided) immediately prior to the Effective Time in the Company Charter or Company Bylaws, in any separate indemnification agreements between the Company and its directors or officers or in any other Company Employee Benefit Plan or Company Pension Plan as in effect on the Prior Execution Date; provided, that such exculpation from liabilities for acts and indemnification covers actions or omissions occurring at on or prior to the Effective Time (Time, including, without limitation, all transactions contemplated by this Agreement. Parent shall obtain and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as maintain in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after at the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present continuing until the sixth anniversary thereof "run-off" directors and officers than are presently set forth in the Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for with a period of six years from the Effective Time, if available, coverage amount and shall contain substantially the same coverage and amount as, and contain other terms and conditions no less advantageous, favorable in the aggregate, aggregate to the Company Officers or Directors than under the coverage provided in Company's current directors and officers liability insurance policy covering the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from directors and officers of the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case Company with respect to matters occurring their service as such prior to the Effective Time; provided, however, that in no event shall the Company Parent be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as pay a premium for the tail policy or an amount per year equal to 300such insurance in excess of 150% of current the last annual premiums premium paid by the Company prior to the Prior Execution Date, but if the premium required to obtain such coverage would exceed such maximum amount, Parent shall purchase as much coverage as possible for such insurance maximum amount.
(which premiums the Company represents and warrants b) The provisions of this Section 5.11 are intended to be $940,000 for the benefit of, and shall be enforceable by, each Company Officer or Director, his or her heirs and his or her personal representatives and shall be binding on all successors and assigns of Parent and the Company. Parent agrees to pay all costs and expenses (including fees and expenses of counsel) that may be incurred by any Company Officer or Director, his or her heirs or his or her personal representatives in successfully enforcing the aggregate), as indemnity or other obligations of Parent under this Section 5.11. The provisions of this Section 5.11 shall survive the case Merger and are in addition to any other rights to which a Company Officer or Director may bebe entitled.
(c) In the event the Company that Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, such entity shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable expressly or by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Walden Residential Properties Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article Eight of the Certificate of Incorporation and or Article V of the By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect effect, for six years from the Effective Time, if available, the D&O Insurance Policies current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case advantageous) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.06(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 842,575 in the aggregate), as it being understood that, if the case premium required to be paid by Parent for such policy would exceed such 200% amount, then the coverage of such policy shall be reduced to the maximum amount that may bebe obtained for a per annum premium in such 200% amount.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.066.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (St Assembly Test Services LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the memorandum and articles of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shallshall maintain in effect for six (6) years from the Effective Time, at its option, either (A) purchase a tail policy of the current directors’ and officers’ liability insurance which shall be in effect for a period of six years from policies maintained by the Company with respect to matters occurring prior to the Effective Time, if available, including acts or omissions occurring in connection with this Agreement and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in consummation of the aggregate, than Transactions (the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableparties covered thereby, the D&O Insurance Policies (provided “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable)favorable than those provided under the Company’s current policies, in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums premiums, as of the date of this Agreement, the Company represents and warrants to be $940,000 the aggregate amount set forth in Section 6.05(b) of the aggregateCompany Disclosure Schedule). Notwithstanding anything to the contrary set forth in this Agreement, as the case Company may beand, at Holdco’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms and 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 Holdco 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 Holdco 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 with all of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses) the 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 (i) the fact that such person is or was a director or officer of the Company or such Subsidiary or (ii) 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 to enforce this provision or any other indemnification or advancement right of any Indemnified Party), 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 Holdco 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 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.
(d) In the event the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Company or or, at CIGHoldco’s option, CIGHoldco, shall assume the obligations set forth in this Section 10.066.05.
(de) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(f) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of Buyer (the “Buyer D&O Indemnified Persons”) and of the Company and any of the Company Subsidiaries (the “Company D&O Indemnified D&OsPersons” and, together with the Buyer D&O Indemnified Persons, the “D&O Indemnified Persons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law) between any D&O Indemnified Person and any of the Company (or any Company Subsidiary) or Buyer (as applicable) in effect on the Effective Date and disclosed in Schedule 5.9(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the Effective Timeextent permitted by applicable Law. FurtherFor a period of six (6) years after the Closing Date, PubCo shall cause the Certificate Organizational Documents of Incorporation PubCo and By-laws of the Company after the Effective Time shall (and any Company Subsidiary) to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate Organizational Documents of Incorporation and By-laws of Buyer to 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 any such individuals, except as amendments may be required extent permitted by the DGCL during such periodapplicable Law.
(b) The Company For a period of six (6) years from the Closing, PubCo shall, at or shall cause its optionAffiliates or Subsidiaries to, either (A) purchase a tail policy of maintain in effect directors’ and officers’ liability insurance which shall be in effect for a period of six years from covering the Effective Time, if availableD&O Indemnified Persons on terms substantially equivalent to, and shall contain substantially the same coverage and amount as, and contain terms and conditions no in any event not less advantageous, favorable in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies terms of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timesuch current insurance coverage; provided, however, that in no event shall the Company PubCo be required to expend for such policies pursuant to this Section 10.06(b5.9 an aggregate amount in excess of three hundred percent (300%) more than $2,500,000 as a of the aggregate annual premium for the tail policy or an amount per year equal to 300% of current annual premiums paid payable by the Company or Buyer, as applicable for such insurance (which premiums the last full fiscal year. Notwithstanding the foregoing, Buyer or the Company represents and warrants may cause coverage to be $940,000 extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy with respect to claims existing or occurring at or prior to the Closing and (i) if and to the extent such policies have been obtained prior to the Closing with respect to any such Persons, the Company and PubCo shall maintain (and cause their Subsidiaries to maintain) such policies in effect and continue to honor the aggregate)obligations thereunder, as and (ii) if any claim is asserted or made within such six-year period, any insurance required to be maintained under this Section 5.9(b) shall be continued in respect of such claim until the case may befinal disposition thereof.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 9 shall survive the Closing and are intended to be for the benefit of, and will shall be enforceable by, each of the D&O Indemnified D&O, his or her heirs, Persons and his or her representatives their respective heirs and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseRepresentatives.
Appears in 1 contract
Samples: Equity Purchase Agreement (Yellowstone Acquisition Co)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Purchaser Parties and the Company Group (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties or the Company Group, as the case may be, in effect on the date hereof and disclosed in Schedule 7.7(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of three (3) years after the Reincorporation Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanyPurchaser Parties to the extent permitted by applicable Law. The provisions of this Section 7.7 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a period “tail” insurance policy that provides coverage for the benefit of six years the D&O Indemnified Persons (the “D&O Tail Insurance”) for anytime starting from March 1, 2022 to the Effective Timethird anniversary of the Closing Date. that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for amount in excess of 200% of the tail policy or an amount per year equal to 300% of current annual premiums annum the Parent paid by the Company for in its last full fiscal year, which amount is set forth in Schedule 7.7(b). Parent shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and cause the aggregate), as the case may beother Purchaser Parties to honor all obligations thereunder.
(c) In On the event Closing Date, the Company or any of its successors or assigns (i) consolidates Purchaser shall enter into customary indemnification agreements reasonably satisfactory to all parties with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations individuals set forth in this Section 10.06.
(d) This Section 10.06 on Schedule 7.7(c), which indemnification agreements shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for effective following the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseClosing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Combined Company agrees that shall (i) indemnify and hold harmless, and provide advancement of expenses to, all rights past and present directors, officers and employees of Alpha and its Subsidiaries (in all of their capacities as such), to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Alpha pursuant to Alpha's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any such directors, officers and exculpation from liabilities employees of Alpha and its Subsidiaries for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws consummation of the Company after the Effective Time shall contain provisions no less favorable with respect transactions contemplated hereby) and (ii) cause to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ ' and officers’ ' liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies fiduciary liability insurance maintained by Alpha (provided that the Surviving Corporation Combined A-39 Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured than the current policies maintained by Alpha) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Combined Company be required to expend in any one year an amount in excess of 200% of the annual premiums (on a per capita basis) currently paid by Alpha for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Combined Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(b) The Combined Company shall (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of the Washington Companies (in all of their capacities as such), to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Conexant pursuant to Conexant's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any such directors, officers and employees of the Washington Companies for acts or omissions occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Section 10.06(bAgreement and the consummation of the transactions contemplated hereby) more than $2,500,000 as and (ii) maintain in effect for each of the applicable persons referred to in clause (i) for a premium for period of six years after the tail policy or an amount per year equal to 300% Effective Time policies of current annual premiums paid by directors' and officers' liability insurance and fiduciary liability insurance of at least the Company for such insurance (same coverage and amounts as, and containing terms and conditions which premiums the Company represents and warrants to be $940,000 are, in the aggregate), as no less advantageous to the case may beinsured than, the current policies of directors' and officers' liability insurance maintained by Conexant, with respect to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Combined Company be required to expend in any one year an amount in excess of 200% of the annual premiums (on a per capita basis) currently paid by Conexant for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Combined Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 7.8 are intended to be for the benefit of, of and will shall be enforceable by, by each Indemnified D&O, his indemnified or her heirs, and his or her representatives and are insured party referred to above in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisethis Section 7.8.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Conexant Systems Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Surviving Corporation shall, and Purchaser shall cause the Surviving Corporation to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present (as of the Effective Time) directors, officers and employees of Company agrees that all rights and its Subsidiaries (the "Indemnified Persons") to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by Company pursuant to Company's articles of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any current or former directors, officers and exculpation from liabilities employees of Company and its Subsidiaries (but in any event to the fullest extent permitted by law) for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, Option Agreement and the Certificate of Incorporation and By-laws consummation of the Company after transactions contemplated hereby and thereby), and (ii) purchase as of the Effective Time a tail policy to the current policy of directors' and officers' liability insurance and fiduciary liability insurance maintained by Company which tail policy 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 Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified effective for a period of six years from the Effective Time in any manner that would adversely affect through and including the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of date six years after the Closing Date with respect to claims arising from facts or events that occurred on or before the Effective Time, if available, and which tail policy shall contain substantially the same coverage and amount asamounts, and contain terms and conditions no less advantageous, in the aggregate, than the as that coverage currently provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timeby such current policy; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium expend, for the entire tail policy or an amount per year equal to 300policy, in excess of 400% of current the annual premiums premium currently paid by the Company for its current policy of directors' and officers' liability insurance and fiduciary liability insurance; and, provided, further, that if the premium of such insurance coverage exceeds such amount, the Surviving Corporation after consultation with Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(which premiums b) To the Company represents extent permitted by the IBCL, the articles of incorporation and warrants by-laws of the Surviving Corporation shall contain provisions with respect to be $940,000 indemnification, advancement of expenses and exculpation from liability at least as favorable to the Indemnified Persons as those set forth in the aggregate)current articles of incorporation and by-laws of Company, and for a period of six years from the Effective Time, those provisions shall not be repealed or amended or otherwise modified in any manner that would adversely affect the rights thereunder as of the case may beEffective Time of the Indemnified Persons, except to the extent, if any, that such modification is required after the Effective Time by applicable law.
(c) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Persons on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(d) The covenants contained in this Section 5.7 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Persons and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Persons is entitled, whether pursuant to law, contract or otherwise.
(e) In the event that the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger 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 at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume succeed to the obligations set forth in this Section 10.065.7.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Anthem Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Purchaser Parties and the Company Group (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties or the Company Group, as the case may be, in effect on the date hereof and disclosed in Schedule 7.7(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Reincorporation Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanyPurchaser Parties to the extent permitted by applicable Law. The provisions of this Section 7.7 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a period “tail” insurance policy that provides coverage for the benefit of six years the D&O Indemnified Persons (the “D&O Tail Insurance”) for anytime starting from March 1, 2022 to the Effective Timesixth anniversary of the Closing Date. that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for amount in excess of 200% of the tail policy or an amount per year equal to 300% of current annual premiums annum the Parent paid by the Company for in its last full fiscal year, which amount is set forth in Schedule 7.7(b). Parent shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and cause the aggregate), as the case may beother Purchaser Parties to honor all obligations thereunder.
(c) In On the event Closing Date, the Company or any of its successors or assigns (i) consolidates Purchaser shall enter into customary indemnification agreements reasonably satisfactory to all parties with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations individuals set forth in this Section 10.06.
(d) This Section 10.06 on Schedule 7.7(c), which indemnification agreements shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for effective following the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseClosing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses exculpation and exculpation of former or present directors and officers indemnification than are presently set forth in the Certificate memorandum and articles of Incorporation and By-laws association of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six (6) years from the Effective Time, if available, the D&O Insurance Policies 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 (provided the parties covered thereby, the “Indemnified Parties”); provided, however, that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b6.07(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums but in such case shall purchase as much of such coverage as possible for such amount. In addition, the Company represents 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 warrants conditions no less advantageous to be $940,000 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 Corporation shall, and Parent shall cause the Surviving Corporation to, maintain such policies in full force and effect, and continue to honor the aggregate)respective obligations thereunder, as the case may beand all other obligations of Parent or Surviving Corporation under this Section 6.07(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.07, from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to comply with all of its obligations, and 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 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 any acts or omissions occurring or alleged to have occurred 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 and to the fullest extent permitted by the BVI Companies Act 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 Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries; provided that, in the case of each of (i) and (ii), such person acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company or the relevant Subsidiary; 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 (2) a written undertaking by such person 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 6.07(c). Notwithstanding anything in the foregoing to the contrary, no indemnification shall be made (whether under this Section 6.07(c), the Company’s or any Subsidiary’s organizational and governing documents, any existing indemnification agreements or otherwise) in respect of any Action as to which a person seeking indemnification shall have been adjudged by a court, tribunal or other Governmental Authority of competent jurisdiction (A) to be liable to the Company or any Subsidiary, or (B) that such person’s actions, or omissions to act, constitute: (1) a violation of Law, unless such person had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful, (2) a transaction from which such person derived an improper personal benefit, or (3) willful misconduct or a conscious disregard for the best interests of the Company or any Subsidiary.
(d) In the event the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, Surviving Corporation shall assume the obligations set forth in this Section 10.066.06.
(de) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.07 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.07.
(f) Nothing in addition 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 their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.07 is not prior to or in substitution for, any other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees Parent and Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement existing as of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement in favor of each present (as of the Effective Time) and former officer and director of the Company and the Company Subsidiaries (the “Indemnified Parties”), as provided in the Company M&A or any indemnification agreement identified in Section 3.18(a)(xiii) of the Company Disclosure Schedule, shall survive the Merger, shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after for at least six (6) years following the Effective Time (or such shorter time as may be provided in each such agreement or other document), and in each case shall not be amended, repealed or otherwise modified after the Closing in any manner that would adversely affect the rights thereunder in any material respect (provided, that all rights to indemnification in respect of any claims asserted or made within such period shall continue until the disposition of such claim).
(b) The memorandum and articles of association of the Surviving Company 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 Certificate of Incorporation and By-laws of the CompanyCompany M&A, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect in any material respect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(bc) The Prior to the Effective Time, the Company shallshall obtain and pay the premium for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, for a claims reporting or discovery period of at its option, either least six (A6) purchase a tail policy of years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance which shall be in effect for a period and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage liability that are at least as favorable as provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from Company’s existing policies as of the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timedate hereof; provided, however, that in no event shall the Company be required to or the Surviving Company expend for such policies pursuant to this Section 10.06(bsentence an annual premium amount in excess of three hundred percent (300%) more than $2,500,000 as a premium for of the tail policy or an amount per year equal to 300% of current annual premiums currently paid by the Company for such insurance (which premiums insurance. If the Company represents and warrants the Surviving Company for any reason fail to be $940,000 obtain such “tail” insurance policies as of the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, 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 terms, conditions, retentions and limits of liability that are at least as favorable as provided in the aggregate)Company’s existing policies as of the date hereof, or the Surviving Company shall, and Parent shall cause the Surviving Company to, use best efforts to purchase comparable D&O Insurance for such six (6) year period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the case may be.
Company’s existing policies as of the date hereof; provided, that in no event shall Parent or the Surviving Company be required to expend for such policies pursuant to this sentence an annual premium amount in excess of three hundred percent (c300%) In of the event annual premiums currently paid by the Company or any of its successors or assigns (i) consolidates with or merges into any other Person for such insurance; and shall not be provided, further, that if the continuing or surviving corporation or entity annual premiums of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personinsurance coverage exceed such amount, then, and in each the Surviving Company shall obtain a policy with the greatest coverage available for a cost not exceeding such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06amount.
(d) This Section 10.06 shall continue in effect subsequent Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth (6th) anniversary of the Effective Time, is intended to benefit the Company provisions and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions benefits of this Section 10.06 6.6 shall continue in full effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The covenants contained in this Section 6.6 are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&O, his or her heirs, Parties and his or her representatives their respective heirs and are in addition to, and legal representatives. The indemnification provided for herein shall not in substitution for, be deemed exclusive of any other rights to indemnification or contribution that any such Person may have by which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) This Section 6.6 shall not be amended in a manner adverse in any material respect to the Indemnified Parties without the written consent of each of the Indemnified Parties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights Surviving Corporation shall cause to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing be maintained in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided effect in its Certificate certificate of Incorporation or Byincorporation and by-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified (i) for a period of six years from after the Effective Time Time, the current provisions regarding elimination of liability of directors and indemnification of officers, directors and employees contained in any manner that would adversely affect the rights thereunder certificate of any such individuals, except as amendments may be required by the DGCL during such period.
incorporation and by-laws of Frontier and (bii) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableyears, the D&O Insurance Policies current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by Frontier (provided PROVIDED that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; providedPROVIDED, howeverHOWEVER, that in no event shall the Company Surviving Corporation be required to expend pursuant in any one year an amount in excess of 200% of the annual premiums currently paid by Frontier for such insurance; and, PROVIDED, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if prepaid policies have been obtained by Frontier prior to the Closing for purposes of this Section 10.06(b) more than $2,500,000 as a premium 5.8, which policies provide such directors and officers with coverage for the tail policy an aggregate period of six years with respect to claims arising from facts or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company events that occurred on or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to before the Effective Time, is intended to benefit the Company and each Indemnified D&Oincluding, shall be binding on all successors and assigns without limitation, in respect of the Companytransactions contemplated by this Agreement and for a premium not in excess of the aggregate of the premiums set forth in the preceding sentence. If such prepaid policies have been obtained by Frontier prior to the Closing, Global shall and shall cause the Surviving Corporation to maintain such policies in full force and effect, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended continue to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisehonor Frontier's obligations thereunder.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. Holdco shall, and in the case of the El Sitio Merger, Holdco shall cause the surviving corporation of the El Sitio Merger to, (i) indemnify and hold harmless, and provide advancement of expenses to, all past and present directors, officers and employees of each party to the Transactions and their respective subsidiaries (in all of their capacities) (a) The Company agrees that all rights to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by such party pursuant to such party's certificate of incorporation, bylaws (or equivalent constitutive documents) and indemnification agreements, if any, in existence on the date hereof with any directors, officers and exculpation from liabilities employees of such party and its subsidiaries and (b) without limitation to clause (a), to the fullest extent permitted by law, in each case for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue and the consummation of the Transactions), (ii) include and cause to be maintained in full force and effect in accordance with their terms subsequent to the surviving corporation's (or any successor's) memorandum and articles of association, certificate of incorporation and bylaws or equivalent constitutive documents after the Effective Time. Further, the Certificate provisions regarding elimination of Incorporation liability of directors, indemnification of officers, directors and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, employees and advancement of expenses and exculpation of former or present directors and officers than are presently set forth which are, in the Certificate aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the current certificate of Incorporation incorporation and By-laws bylaws of the Company, which provisions shall not such party and (iii) cause to be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ ' and officers’ ' liability insurance which shall be in effect for a period of six years from the Effective Timeand fiduciary liability insurance maintained by such party (provided, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation surviving corporation (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Company surviving corporation be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or in any one year an amount per year equal to 300in excess of 150% of current the annual premiums currently paid by the Company such party for such insurance; and, provided, further, that if the annual premiums of such insurance (which premiums coverage exceed such amount, the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that obligated to obtain a policy with the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be greatest coverage available for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and a cost not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.exceeding such
Appears in 1 contract
Samples: Combination Agreement (El Sitio Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company Parent Parties and the Company, as applicable (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Parent Parties and the Company, as applicable in effect on the date hereof and disclosed in Schedule 7.7(a), shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation PubCo and By-laws of the Company after the Effective Time shall Surviving Corporation to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate Organizational Documents of Incorporation the Parent Parties and By-laws of the Company, which as applicable, to the extent permitted by applicable Law. The provisions of this Section 7.7 shall not survive the Closing and are intended to be amendedfor the benefit of, repealed or otherwise modified for a period and shall be enforceable by, each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at its option, either (A) purchase a tail policy For the benefit of directorsthe Parent Parties’ director and officers’ liability insurance which , the Purchaser shall be in effect permitted prior to the Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period of six years from and after the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect Closing Date for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters events occurring prior to the Effective TimeClosing Date (the “Purchaser D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if substantially equivalent insurance coverage is unavailable, comparable coverage; provided, however, provided that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for the tail policy or an amount per year equal to 300in excess of 250% of current annual premiums the amount of per annum Parent paid by in its last full fiscal year, which amount is set forth in Schedule 7.7(b). For purpose of this Agreement, the purchase of such Purchaser D&O Tail Insurance shall be treated as an expense of the Parent Parties which is to be reimbursed pursuant to Section 7.6(iv) hereof. If obtained, the Company for shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and to cause the aggregate), as the case may beSurviving Corporation to honor all obligations thereunder.
(c) In For the event benefit of the Company’s directors and officers, the Company or shall be permitted prior to the Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period from and after the Closing Date for events occurring prior to the Closing Date (the “Company D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the Company’s existing policy or, if substantially equivalent insurance coverage is unavailable, comparable coverage; provided that in no event shall the Company be required to expend for such policies pursuant to this Section 7.7(c) an annual premium amount in excess of $500,000. If obtained, the Company shall cause such D&O Tail Insurance to be maintained in full force and effect, for its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, thenfull term, and in each such case, proper provision shall be made so that cause the successors and assigns of the Surviving Company or at CIG’s option, CIG, shall assume the to honor all obligations set forth in this Section 10.06thereunder.
(d) This Section 10.06 On the Closing Date, PubCo shall enter into customary indemnification agreements reasonably satisfactory to the Parent Parties and to the Company with the individuals elected as executive officers and members of the board of directors of the PubCo as of the Closing, which indemnification agreements shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for effective following the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseClosing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the memorandum and articles of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six (6) years from the Effective Time, if available, the D&O Insurance Policies 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 (provided the parties covered thereby, the “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(bSection 6.04(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums 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 lieu of maintaining the directors’ and officers’ liability insurance policies contemplated by this Section 6.04, the Company represents may and, at THL’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms and warrants conditions no less advantageous to be $940,000 in the aggregate), Indemnified Parties than the existing directors’ and officers’ liability insurance maintained by the Company so long as the case may beannual 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 THL 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 THL or Surviving Company under this Section 6.04(b) shall terminate.
(c) Subject to the terms and conditions of this Section 6.04, from and after the Effective Time, the Surviving Company shall comply with all of the Company’s obligations, and shall cause its Subsidiaries to comply with their respective obligations to indemnify and hold harmless (including any obligations to advance funds for expenses) the 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 Action (“Damages”), arising out of, relating to or in connection with (i) the fact that such person is or was a director or officer of the Company or such Subsidiary or (ii) any acts or omissions occurring or alleged to have occurred 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 and to the fullest extent permitted by the Companies Law or any other applicable Law, 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.
(d) A person seeking indemnification in accordance with Section 6.04(c) or applicable agreement or document providing for such indemnification shall use reasonable best 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 6.04(d) and acknowledges in writing that it will indemnify the person seeking indemnification with respect to the applicable matter, 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 its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation 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 CIGTHL’s option, CIGTHL, shall assume the obligations set forth in this Section 10.06Section 6.04.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 Section 6.04 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.04.
(g) Nothing in addition 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 their respective officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.04 is not prior to or in substitution for, any other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification certificate of incorporation and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement by-laws of expenses) now existing in favor of the current or former directors or officers each subsidiary of the Company (having provisions covering the “Indemnified D&Os”) indemnification of current and former officers and directors shall contain the respective provisions that are set forth, as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue Agreement, in full force such certificates of incorporation and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and Byby-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification(or similar organizational documents), advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six three years from the Effective Time Closing Date in any manner that would affect adversely affect the rights thereunder of individuals who at or at any such individuals, except as amendments may be required by time prior to the DGCL during such periodClosing were entitled to indemnification thereunder.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Acquiror shall cause to be maintained in effect for a period of six three years from the Effective Time, if available, Closing Date directors' and shall contain substantially officers' liability insurance covering those persons who are currently covered by the same Company's directors' and officers' liability insurance policy set forth in Section 7.08(b) of the Company Disclosure Schedule on terms comparable to such existing insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring claims arising from facts or events that occurred prior to the Effective TimeClosing; providedPROVIDED, howeverHOWEVER, that in no event shall Acquiror or the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for 200 percent of the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums insurance; PROVIDED, FURTHER, that if Acquiror or the Company represents is unable to obtain insurance for any period for 200 percent of the current annual premiums, then the obligation of Acquiror and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision pursuant hereto shall be made so that to obtain the successors and assigns of best coverage reasonably available under the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent circumstances subject to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding foregoing limitation on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwisepremiums.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification From and exculpation from liabilities for acts or omissions occurring at or prior to after the Effective Time Time, Sumitomo will cause the Surviving Corporation to (i) indemnify and rights for hold harmless, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding, whether civil, criminal, administrative or investigative, and provide advancement of expensesexpenses to, all past and present directors, officers and employees of Symetra and the Symetra Subsidiaries (in all of their capacities) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&OsPersons”) (A) to the same extent such Indemnified Persons are indemnified or exculpated or have the right to advancement of expenses as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as date of this Agreement by Symetra pursuant to Symetra’s Constituent Documents and indemnification Contracts, if any, in effect existence on the date of this Agreement shall continue with the Indemnified Persons and (B) without limitation to clause (A), to the fullest extent permitted by Law, (ii) honor the provisions regarding elimination of liability of directors, indemnification of directors and officers and advancement of expenses contained in full force and effect in accordance with their terms subsequent Symetra’s Constituent Documents immediately prior to the Effective Time. Further, the Certificate of Incorporation Time and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified (iii) maintain for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy policies of directors’ and officers’ liability insurance which shall be in effect for a period and fiduciary liability insurance (“D&O Insurance”) covering each person covered by Symetra’s current D&O Insurance as of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect providing for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts as, and containing terms and conditions that which are not materially no less favorable)favorable to the insured than, in either case such current D&O Insurance, with respect to matters claims arising from facts or events that occurred on or before the Effective Time, including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing, in no event will the Surviving Corporation be required to expend for any one coverage year more than 300 percent of the current annual premium expended by Symetra and the Symetra Subsidiaries to maintain or procure such D&O Insurance immediately prior to the Effective Time (such amount, the “Maximum Annual Premium”). If the annual premiums of such insurance coverage exceed the Maximum Annual Premium, the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. In lieu of the foregoing insurance coverage, Sumitomo may cause the Surviving Corporation to purchase six-year prepaid “tail” insurance coverage, at a cost no greater than a one-time payment equal to the Maximum Annual Premium, that provides coverage not less favorable to the insured than the coverage described above. Notwithstanding the foregoing, Symetra may in its sole discretion purchase, prior to the Effective Time; provided, howeversix-year prepaid “tail” insurance coverage, at a cost no greater than a one-time payment equal to the Maximum Annual Premium, that provides coverage not less favorable to the insured than the coverage described above, and if Symetra has obtained such prepaid “tail” policy prior to the Effective Time, Sumitomo will cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation, and Sumitomo will have no event shall the Company be required further obligation to expend purchase or pay for insurance pursuant to this Section 10.06(b7.04(a).
(b) more than $2,500,000 as a premium for The rights of each Indemnified Person hereunder will be in addition to, and not in limitation of, any other rights such Indemnified Person may have under the tail policy Constituent Documents of Symetra or an amount per year equal to 300% any of current annual premiums paid by the Company for such insurance (which premiums Symetra Subsidiaries or the Company represents and warrants to be $940,000 in Surviving Corporation, any other indemnification Contract, the aggregate), as the case may beDGCL or otherwise.
(c) The provisions of this Section 7.04 will survive the consummation of the Merger and expressly are intended to benefit, and are enforceable by, each of the Indemnified Persons and his or her heirs. In the event that the Company Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each either such case, proper provision shall will be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall Surviving Corporation will assume and comply with the obligations set forth in this Section 10.067.04.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns The obligations of the CompanySurviving Corporation under this Section 7.04 will not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person, and shall be enforceable by it being expressly agreed that the Indemnified D&O. The provisions Persons will be third party beneficiaries of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise7.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights By virtue of the occurrence of the Mergers and Second Step Merger and the Bank Merger, EQBK and Equity Bank shall, from and after the Effective Time, succeed to KBI’s and Bank’s obligations with respect to indemnification and or exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers directors, officers, employees and agents of KBI and the Company (the “Indemnified D&Os”) Bank, respectively, as provided in its Certificate their articles of Incorporation incorporation, Bylaws, indemnification agreements or By-laws and any indemnification or other agreements of the Company as otherwise in effect on as of the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective TimeTime (collectively, the “Existing Indemnification Obligation”). EQBK hereby guaranties KBI’s indemnification obligations.
(b) Except to the extent prohibited by applicable Law, following the Effective Time and for a period of three (3) years thereafter, EQBK shall indemnify, defend, and hold harmless any Person who has rights to indemnification from KBI or the Bank, under the Existing Indemnification Obligation.
(c) Prior to Closing, EQBK and Equity Bank shall obtain, at the expense of EQBK, a three (3) year tail insurance coverage policy relating to the policies of directors’ and officers’ liability insurance currently maintained by KBI and the Bank as of the date hereof with respect to claims arising from facts or events that occurred on or prior to the Effective Time (including the transactions contemplated hereby) as currently maintained by KBI (“Tail Policy”), on terms no less advantageous than those contained in KBI’s existing directors’ and officers’ and company’s liability insurance policy; provided, however, that in no event EQBK shall the Company not be required obligated to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or expend, on an annual basis, an amount per year equal to 300in excess of 200% of the current annual premiums premium paid as of the date hereof by the Company KBI for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may beinsurance.
(cd) In the event the Company If EQBK or Equity Bank or any of its their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and or assets to any Person, then, and in each such case, proper to the extent necessary, provision shall be made so that the successors and assigns of the Company EQBK or at CIG’s option, CIG, shall Equity Bank expressly assume the obligations set forth in this Section 10.066.10.
(de) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.10 are intended to be for the benefit of, and will shall be enforceable by, each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of KBI or the Bank (the “Indemnified D&O, his or her heirs, Parties”) and his or her heirs and representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees From and after the Effective Time, the Surviving Corporation will (i) indemnify and hold harmless, against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding, whether civil, criminal, administrative or investigative, and provide advancement of expenses to, all past and present directors and officers of Nalco and the Nalco Subsidiaries (in all of their capacities) (the "Indemnified Persons") (A) to the same extent such Indemnified Persons are indemnified or exculpated or have the right to advancement of expenses as of the date of this Agreement by Nalco pursuant to Nalco's Constituent Documents and indemnification Contracts, if any, in existence on the date of this Agreement with the Indemnified Persons and (B) without limitation to clause (A), to the fullest extent permitted by Law, (ii) honor the provisions regarding elimination of liability of directors, indemnification of directors and officers and advancement of expenses contained in Nalco's Constituent Documents immediately prior to the Effective Time and (iii) maintain for a period of six years after the Effective Time policies of directors' and officers' liability insurance and fiduciary liability insurance ("D & O Insurance") covering each person covered by Nalco's current D & O Insurance as of the Effective Time, providing for at least the same coverage and amounts as, and containing terms and conditions which are no less favorable to the insured than, such current D & O Insurance, with respect to claims arising from facts or events that all rights to indemnification and exculpation from liabilities occurred on or before the Effective Time, including for acts or omissions occurring at in connection with the approval of this Agreement and the consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing, in no event will the Surviving Corporation be required to expend for any one coverage year more than 250 percent of the current annual premium expended by Nalco and the Nalco Subsidiaries to maintain or procure such D & O Insurance immediately prior to the Effective Time (and rights such amount, the "Maximum Annual Premium"). If the annual premiums of such insurance coverage exceed the Maximum Annual Premium, the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available for advancement of expenses) now existing in favor a cost not exceeding the Maximum Annual Premium. In lieu of the current foregoing insurance coverage, Ecolab may direct Nalco or former directors or officers of the Company (Surviving Corporation to purchase "tail" insurance coverage, at a cost no greater than the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of six times the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. FurtherMaximum Annual Premium, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no that provides coverage not 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such periodcoverage described above.
(b) The Company shall, at its option, either (A) purchase a tail policy rights of directors’ and officers’ liability insurance which shall each Indemnified Person hereunder will be in effect for a period of six years from the Effective Time, if availableaddition to, and shall contain substantially not in limitation of, any other rights such Indemnified Person may have under the same coverage and amount asConstituent Documents of Nalco or any of the Nalco Subsidiaries or the Surviving Corporation, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableany other indemnification Contract, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy DGCL or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may beotherwise.
(c) The provisions of this Section 7.9 will survive the consummation of the Merger and expressly are intended to benefit, and are enforceable by, each of the Indemnified Persons and his or her heirs. In the event that the Company Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each either such case, proper provision shall will be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall Surviving Corporation will assume and comply with the obligations set forth in this Section 10.067.9.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns The obligations of the CompanySurviving Corporation under this Section 7.9 will not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person, and shall be enforceable by it being expressly agreed that the Indemnified D&O. The provisions Persons will be third party beneficiaries of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise7.
Appears in 1 contract
Samples: Merger Agreement (Ecolab Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and the By-laws of the Company after the Effective Time Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers indemnification than are presently set forth in Article XIII of the Certificate of Incorporation of the Company and Article VI of the By-laws of the Company, respectively, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its commercially reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time (the "Tail Period") the Existing D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b7.07(b) more than $2,500,000 as a an amount equal to 175% of the annual premium of the Existing D&O Policies for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 entire Tail Period, in the aggregate), as the case may be.
(c) In the event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, or at CIG’s Parent's option, CIGParent, shall assume the obligations set forth in this Section 10.067.08.
(d) This Section 10.06 The Surviving Corporation and Parent shall continue honor and fulfill in effect subsequent all respects the obligations of the Company pursuant to indemnification agreements with the Company's directors and officers existing at or before the Effective Time.
(e) This Section shall survive the consummation of the Offer and the Merger, is intended to benefit the Company Company, the Surviving Corporation and each Indemnified D&Oindemnified party, shall be binding binding, jointly and severally, on all successors and assigns of the CompanySurviving Corporation and Parent, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseindemnified parties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Parent shall, to the extent that Company agrees that would be permitted by applicable law or its bylaws, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer or director of Company or any of its Subsidiaries (each an "INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED PARTIES") against all rights losses, expenses (including reasonable attorney's fees and expenses), claims, damages or liabilities or, subject to indemnification and exculpation from liabilities for acts the next succeeding sentence, settlements arising out of actions or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current whether asserted or former directors claimed prior to, at or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former based on or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws arising out of the Companyfact, which provisions in whole or in part, that such person is or was a director or officer of such party. Parent shall not be amendedliable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). Parent shall, repealed or otherwise modified for a period of six years from to the Effective Time fullest extent that Company would be permitted under applicable law, advance expenses to the Indemnified Parties. Parent and Surviving Corporation shall cooperate in any manner that would adversely affect the rights thereunder defense of any such individuals, except as amendments may be required matters contemplated by the DGCL during such periodthis Section 7.3.
(b) The Company shall, at its option, either (A) purchase a tail policy of Parent shall maintain Company's existing officers' and directors’ and officers’ ' liability insurance which shall be in effect policy ("D&O INSURANCE") for a period of not less than six years from after the Effective Time, if available, and shall contain substantially but only to the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies extent related to actions or (B) use its reasonable best efforts omissions prior to maintain in effect for six years from the Effective Time; provided, if available, the D&O Insurance Policies (provided that the Surviving Corporation Parent may substitute therefor policies of at least the same substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers if (i) the carrier of such substitute policies maintains a Best rating equal to or greater than the Company's existing carrier and conditions that are (ii) such substitution shall not materially less favorable), result in either case gaps or lapses of coverage with respect to matters occurring prior to the Effective Time; provided, howeverfurther, that in no event shall the Company will Parent be required to expend pursuant to this Section 10.06(b) annually more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current the last annual premiums premium paid by Company prior to the Company date hereof for such insurance (the amount of which premiums is set forth in Section 7.3(b) of the Company represents and warrants to be $940,000 in the aggregateDisclosure Schedule), but in such event shall purchase as the case may bemuch coverage as reasonably practicable for such amount.
(c) Notwithstanding any other provisions hereof, the obligations of Parent contained in this Section 7.3 shall be binding upon the successors and assigns of Parent. In the event the Company Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and or assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent honor the Company or at CIG’s option, CIG, shall assume the indemnification obligations set forth in this Section 10.067.3.
(d) This The obligations of Parent under this Section 10.06 7.3 shall continue survive the consummation of the Merger and shall not be terminated or modified in effect subsequent such a manner as to adversely affect any Indemnified Party to whom this Section 7.3 applies without the Effective Time, is intended consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to benefit the Company and each Indemnified D&O, whom this Section 7.3 applies shall be binding on all successors and assigns third party beneficiaries of this Section 7.3, each of whom may enforce the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise7.3).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights 7.7.1. Northwest Bancshares will maintain, or will cause Northwest Bank to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as maintain, in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to for six (6) years following the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of current directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Timepolicies maintained by MutualFirst Financial (provided, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation Northwest Bancshares may substitute therefor policies of at least the same coverage containing terms and conditions that which are not materially less favorable), in either case ) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company will Northwest Bancshares be required to expend pursuant to this Section 10.06(b) 7.7.1, in the aggregate for such policy or policies, more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300150% of current the annual premiums paid cost currently expended by the Company for MutualFirst Financial with respect to 69 such insurance (the “Maximum Amount”); provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Northwest Bancshares will maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Amount. In connection with the foregoing, MutualFirst Financial agrees in order for Northwest Bancshares to fulfill its agreement to provide directors and officers liability insurance policies for six (6) years to provide such insurer or substitute insurer with such representations as such insurer may request with respect to the reporting of any prior claims.
7.7.2. In addition to Section 7.7.1, after the Effective Time, Northwest Bancshares will indemnify, defend and hold harmless each person who is now, or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of MutualFirst Financial or a MutualFirst Financial Subsidiary (including, solely to the extent required by the Agreement and Plan of Merger, dated as of October 4, 2017, by and between MutualFirst Financial and Universal Bancorp, the “Universal Indemnified Parties”, as defined in the Agreement and Plan of Merger, dated as of October 4, 2017, by and between the Universal Indemnified Parties, with such indemnification expiring on February 28, 2024) (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorneys’ fees), liabilities or judgments or amounts that are paid in settlement (which premiums settlement shall require the Company represents and warrants prior written consent of Northwest Bancshares, which consent will not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be $940,000 made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of MutualFirst Financial or a MutualFirst Financial Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring before the Effective Time (including, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time (the “Indemnified Liabilities”), to the fullest extent as would have been permitted by MutualFirst Financial under MutualFirst Financial’s Articles of Incorporation and Bylaws, to the extent not prohibited by applicable law. Northwest Bancshares will pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted by applicable law (to the extent not prohibited by federal law) upon receipt of an undertaking to repay such advance payments if the Indemnified Party is adjudicated or determined to be not entitled to indemnification in the aggregate)manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.7.2 upon learning of any Claim, as shall notify Northwest Bancshares (but the case failure so to notify Northwest Bancshares will not relieve Northwest Bancshares from any liability which it may be.
(chave under this Section 7.7.2, except to the extent such failure materially prejudices Northwest Bancshares) and shall deliver to Northwest Bancshares the undertaking referred to in the previous sentence. In the event of any such Claim (whether arising before or after the Company Effective Time) (1) Northwest Bancshares will have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption Northwest Bancshares will not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if Northwest Bancshares elects not to assume such defense, or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether or not any have yet actually arisen) issues which raise conflicts of interest between Northwest Bancshares and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them, and Northwest Bancshares will pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) except to the extent otherwise required due to conflicts of interest, Northwest Bancshares shall be obligated pursuant to this paragraph to pay for only one firm or counsel for all Indemnified Parties and the reasonable fees and expenses of such law firm shall be paid promptly as statements are received unless there is a conflict of interest that necessitates more than one law firm, (3) Northwest Bancshares shall not be liable for any settlement effected without its prior written consent (which consent will not be unreasonably withheld, conditioned or delayed), and (4) no Indemnified Party will be entitled to indemnification hereunder with respect to a matter as to which (x) he has been adjudicated in any proceeding not to have acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of MutualFirst Financial or any MutualFirst Financial Subsidiary, or (y) in the event that a proceeding is compromised or settled so as to impose any liability or obligation upon an Indemnified Party, if there is a determination that with respect to said matter said Indemnified Party did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of MutualFirst Financial or any MutualFirst Financial Subsidiary. If Northwest Bancshares or any of its successors or assigns (i) consolidates with or merges into any other Person entity and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personother entity, then, then and in each such case, proper provision shall will be made so that the successors and assigns of the Company or at CIG’s option, CIG, shall Northwest Bancshares assume the obligations set forth in this Section 10.067.7.
(d) This 7.7.3. The obligations of Northwest Bancshares provided under this Section 10.06 shall continue in effect subsequent to the Effective Time, is 7.7 are intended to benefit be enforceable against Northwest Bancshares directly by the Company Indemnified Parties and each Indemnified D&O, shall be binding on all respective successors and permitted assigns of Northwest Bancshares. Northwest Bancshares will pay all reasonable costs, including attorneys’ fees, as incurred and in advance of the Companyfinal disposition of any claim, action, suit, proceeding or investigation by any Indemnified Party in successfully enforcing the indemnity and other obligations provided for in this Section 7.7 to the fullest extent permitted under applicable law; provided, however such payment of costs shall be enforceable immediately reimbursed to Northwest Bancshares by such Indemnified Party if the Indemnified D&O. The provisions of Party is not entitled to the indemnification or other obligations provided for in this Section 10.06 are intended to be for the benefit of, and will be enforceable by, 7.7. The rights of each Indemnified D&O, his or her heirs, and his or her representatives and Party hereunder are in addition to, and not in substitution for, to any other rights to indemnification or contribution that any such Person Indemnified Party may have by contract or otherwiseunder applicable law.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Associated and the Company agrees that all rights shall cooperate, using commercially reasonable efforts, to indemnification purchase and exculpation from liabilities for maintain in effect, one or more so called "tail" or "run-off" directors and officers liability insurance policies with respect to wrongful acts and/or omissions committed or omissions occurring at allegedly committed by any of the officers or directors of the Company prior to the Effective Time (and rights "D&O Coverage"). Such D&O Coverage shall have a maximum premium of 250% of last year's annual premium for advancement of expenses) now the Company's existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 liability insurance policy (the "Premium Limit"), an aggregate coverage limit over the term of such policy in an amount as near as possible to the Certificate of Incorporation and By-laws of aggregate annual coverage limit under 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 any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of 's existing directors’ ' and officers’ ' liability insurance which shall be in effect for policy, with a period term of up to six (6) years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, also be as near as possible in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts all other material respects to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timesuch existing policy; provided, however, that in no event shall if the premium for six years of D&O Coverage on such terms will exceed the Premium Limit, the Company be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for may, with the tail policy approval of Associated, modify the term or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), coverage amounts so long as the case premium does not exceed the Premium Limit. Notwithstanding the foregoing, the Surviving Corporation, if it so elects in its sole discretion, may bepurchase the aforesaid coverages for a period longer than six (6) years or at a cost in excess of the Premium Limit.
(cb) In the event Associated or the Company Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger 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 Associated or the Company or at CIG’s optionSurviving Corporation, CIGas the case may be, shall assume the obligations set forth in this Section 10.06section.
(c) Associated will indemnify directors and officers of the Company and Company Subsidiaries to the full extent permissible under the Company's Articles of Incorporation, Bylaws or Wisconsin Law.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.11 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified D&O, his or her heirs, Party and his or her representatives heirs and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiserepresentatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees Parent and the Surviving Corporation agree that all rights to the indemnification obligations set forth in the Company's Certificate of Incorporation and exculpation from liabilities for acts or omissions occurring at or the Company's By-Laws, in each case as of the date of this Agreement, shall survive the Merger (and, prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date of this Agreement Time, Parent shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, cause the Certificate of Incorporation and By-laws Laws of the Company after the Effective Time shall contain provisions no less favorable with respect Merger Sub to indemnification, advancement of expenses include such provisions) and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of the individuals who on or at any time prior to the Effective Time were entitled to indemnification thereunder. From and after the Effective Time, such individualsobligations shall be the joint and several obligations of the Parent and the Surviving Corporation and, except as amendments may be required by the DGCL during executing this Agreement, Parent hereby expressly assumes such periodobligations.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which Surviving Corporation shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect effect, for six four (4) years from and after the Effective Time, if available, directors' and officers' liability insurance policies covering the D&O Insurance Policies (provided that persons who are currently covered in their capacities as such directors and officers by the Surviving Corporation may substitute therefor Company's current directors' and officers' policies of at least the same coverage containing and on terms and conditions that are not materially less favorable), in either case favorable than the existing insurance coverage with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b) 6.06 more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300200% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants currently to be $940,000 227,000 in the aggregate); provided further that if the annual premiums exceed such amount, as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision Parent shall be made so that obligated to obtain a policy with the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06greatest coverage available for a cost not exceeding such amount.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. From and after the Effective Time, Parent agrees that it will indemnify and hold harmless, against any costs or expenses (including attorney's fees), judgments, fines, losses, claims damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses to all directors of the Company (a) The to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company agrees that all rights pursuant to the Company's certificate of incorporation, bylaws and indemnification agreements, if any, in existence on the date hereof with any directors, and exculpation from liabilities (b) to the fullest extent permitted by law for acts or omissions occurring while serving in their capacity as directors of the Company at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and rights for advancement of expenses) now existing in favor the consummation of the current transactions contemplated hereby). Parent will maintain for a period of not less than five years from the Effective Time a D&O Insurance policy (or former a policy providing substantially similar coverage as the coverage currently provides) (the "D&O Insurance") for all persons who are directors or and officers of the Company (and its Subsidiaries covered by the “Indemnified D&Os”) Parent's D&O Insurance as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect Effective Time on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Company, which provisions Agreement; PROVIDED that Parent shall not be amended, repealed or otherwise modified required to spend as an annual premium for a period such D&O Insurance an amount in excess of six years from 200% of the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be annual premium paid for D&O Insurance in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Timedate of this Agreement; provided, however, and PROVIDED FURTHER that in no event Parent shall the Company nevertheless be required obligated to expend pursuant to this Section 10.06(b) more than $2,500,000 provide such coverage as a premium may be obtained for such amount (including purchasing tail coverage for the tail policy or an amount per remainder of the five year equal period to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate), as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity extent 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 at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, amount if insurance is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. not otherwise available). The provisions of this Section 10.06 are intended to be for the benefit of, and will shall be enforceable by, each Indemnified D&O, his or her heirs, indemnified party and his or her representatives heirs and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiserepresentatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The memorandum and articles of association of the Surviving Company agrees that all rights shall contain provisions no less favorable with respect to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for exculpation, advancement of expenses) now existing expenses and indemnification than are set forth in favor the memorandum and articles of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shallshall maintain in effect for six (6) years from the Effective Time, at its option, either (A) purchase a tail policy of the current directors’ and officers’ liability insurance which shall be in effect for a period of six years from policies maintained by the Company with respect to matters occurring prior to the Effective Time, if available, including acts or omissions occurring in connection with this Agreement and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in consummation of the aggregate, than Transactions (the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableparties covered thereby, the D&O Insurance Policies (provided “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums insurance. In addition, the Company represents 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 warrants conditions no less advantageous to be $940,000 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 aggregate)respective obligations thereunder, as the case may beand all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) From and after the Effective Time, the Surviving Company shall comply with all of the Company’s obligations, and 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 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 such Person is or was a director, officer or employee of the Company or such Subsidiary, or (B) any acts or omissions occurring or alleged to have occurred 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 and to the fullest extent permitted by the CICL or any other applicable Law, 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 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) shall use commercially reasonably 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. The right of the Surviving Company (or a subsidiary nominated by it), if any, to participate in and/or assume the defense of any Action in respect of which indemnification is sought under Section 6.05(c) shall be determined in accordance with the applicable agreement or document providing for such indemnification.
(e) In the event the Company or the Surviving Company or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(g) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.)
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification memorandum and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement articles of expenses) now existing in favor association of the current or former directors or officers Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the memorandum and articles of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shall, at its option, either (A) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six (6) years from the Effective Time, if available, the D&O Insurance Policies 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 (provided the parties covered thereby, the “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $940,000 US$94,591.65 in the aggregate). In addition, as the case Company may beand, at Parent’s request, the Company shall, purchase a six (6)-year “tail” prepaid policy prior to the Effective Time on terms and 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 with all of the Company’s obligations, and 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 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 any acts or omissions occurring or alleged to have occurred 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 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 Subsidiary if such service was at the request or for the benefit of the Company or any of its Subsidiaries; provided that, in the case of each of (i) and (ii), such person (x) acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company or the relevant Subsidiary, and (y) shall have complied with the provisions of Section 6.05(d).
(d) In the event the Company or the Surviving Company or any of its their respective successors or assigns (i) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation 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 CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(de) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(f) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Kongzhong Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The memorandum and articles of association of the Surviving Company agrees that all rights shall contain provisions no less favorable with respect to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for exculpation, advancement of expenses) now existing expenses and indemnification than are set forth in favor the memorandum and articles of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements association of the Company as in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws of the Company after the Effective Time 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 Certificate of Incorporation and By-laws of the Companyhereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of any individuals who, at or prior to the Effective Time, were directors, officers , employees, fiduciaries or agents of the Company, unless such individuals, except as amendments may modification shall be required by the DGCL during such periodLaw.
(b) The Surviving Company shallshall maintain in effect for six (6) years from the Effective Time, at its option, either (A) purchase a tail policy of the current directors’ and officers’ liability insurance which shall be in effect for a period of six years from policies maintained by the Company with respect to matters occurring prior to the Effective Time, if available, including acts or omissions occurring in connection with this Agreement and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in consummation of the aggregate, than Transactions (the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableparties covered thereby, the D&O Insurance Policies (provided “Indemnified Parties”); provided, however, that the Surviving Corporation Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially no less favorable), in either case with respect to matters occurring prior to the Effective Time; and provided, howeverfurther, that in no event shall the Surviving Company be required to expend pursuant to this Section 10.06(b6.05(b) more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which premiums insurance. In addition, the Company represents 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 warrants conditions no less advantageous to be $940,000 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 aggregate)respective obligations thereunder, as the case may beand all other obligations of Parent or Surviving Company under this Section 6.05(b) shall terminate.
(c) From and after the Effective Time, the Surviving Company shall comply with all of the Company’s obligations, and 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 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 such Person is or was a director, officer or employee of the Company or such Subsidiary, or (B) any acts or omissions occurring or alleged to have occurred 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 and to the fullest extent permitted by the CICL or any other applicable Law, 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 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 services 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) shall use commercially reasonably 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. The right of the Surviving Company (or a subsidiary nominated by it), if any, to participate in and/or assume the defense of any Action in respect of which indemnification is sought under Section 6.05(c) shall be determined in accordance with the applicable agreement or document providing for such indemnification.
(e) In the event the Company or the Surviving Company or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Company, as the case may be, or at CIGParent’s option, CIGParent, shall assume the obligations set forth in this Section 10.066.05.
(df) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 6.05 shall survive the consummation of the Merger and are intended to be for the benefit of, and will shall be enforceable by, each of the Indemnified D&OParties and their heirs and legal representatives, his or her heirs, and his or her representatives and are each of which shall be a third-party beneficiary of the provisions of this Section 6.05.
(g) Nothing in addition 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 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 other rights to indemnification or contribution that for any such Person may have by contract or otherwiseclaims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or and By-laws and any indemnification or other agreements Laws of the Company as Surviving Corporation shall contain the provisions with respect to indemnification set forth in effect on the date of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Restated Certificate of Incorporation and By-laws of the Company after on the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement date of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Companythis Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at any time prior to the Effective Time were officers, directors or employees of the Company in respect of actions or 50 60 omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such individuals, except as amendments may be modification is required by the DGCL during such periodlaw.
(b) The Company shall, at its option, either Surviving Corporation shall maintain (Aor cause to be maintained) purchase a tail policy of directors’ and officers’ liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, Time directors' and officers' liability insurance covering those persons who are currently covered by the D&O Insurance Policies (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing Company's directors' and officers' liability insurance policy on terms and conditions that are not materially less favorable), in either case with respect comparable to matters occurring prior to the Effective Timesuch existing insurance coverage; provided, however, that in no event shall the Company Surviving Corporation be required to expend pursuant to this Section 10.06(b) 6.6 more than $2,500,000 as a premium for the tail policy or an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (which insurance; and provided further that if the annual premiums exceed such amount, Buyer shall be obligated to obtain a policy with the Company represents and warrants to be $940,000 in the aggregate), as the case may begreatest coverage available for an annual cost not exceeding such amount.
(c) In addition to the event other rights provided for in this Section 6.6 and not in limitation thereof (but without in any way limiting or modifying the obligations of any insurance carrier contemplated by Section 6.6(b)), from and after the Effective Time, Buyer shall, and shall cause the Surviving Corporation to, to the fullest extent permitted by applicable Law (the "Indemnifying Party"), (i) indemnify and hold harmless (and release from any liability to Buyer or the Surviving Corporation or any of their respective subsidiaries), the individuals who, on or prior to the Effective Time, were officers, directors or employees of the Company or served on behalf of the Company as an officer, director or employee of any of the Company's current or former subsidiaries or affiliates (including, without limitation, those affiliates listed in Section 6.6(c) of the Company Disclosure Schedule (collectively, "Covered Affiliates") or any of their predecessors in all of their capacities (including as stockholder, controlling or otherwise) and the heirs, executors, trustees, fiduciaries and administrators of such officers, directors or employees (the "Indemnitees") against all Expenses (as defined hereinafter), losses, claims, damages, judgments or amounts paid in settlement ("Costs") in respect of any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on, or arising out of or relating to the fact that such person is or was a director, officer, employee or stockholder (controlling or otherwise) of the Company or any of its successors current or assigns former subsidiaries or Covered Affiliates or any of their predecessors arising out of acts or omissions occurring on or prior to the Effective Time (i) consolidates including, without limitation, in respect of acts or omissions in connection with this Agreement and the transactions contemplated hereby (an "Indemnifiable Claim"; except for acts or merges into any other omissions which involve conduct known to such Person at the time to constitute a material violation of Law); provided that the Surviving Corporation and Buyer shall not be responsible for any amounts paid in settlement of any Indemnifiable Claim without the continuing or surviving corporation or entity consent of such consolidation or merger or Buyer and the Surviving Corporation; and (ii) transfers advance to such Indemnitees all or substantially all Expenses incurred in connection with any Indemnifiable Claim (including in circumstances where the Indemnifying Party has assumed the defense of its properties and assets to any Person, then, and in each such case, proper provision shall be made so claim) promptly after receipt of reasonably detailed statements therefor; provided that the successors and assigns of person to whom Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification from Buyer or the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06.
(d) This Section 10.06 Surviving Corporation. Any Indemnifiable Claim shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any until such Person may have by contract or otherwise.Indemnifiable Claim
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees parties agree that all rights to exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now expenses existing in favor of the current or former directors or and officers of the Company Purchaser Parties (the “D&O Indemnified D&OsPersons”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company their respective Organizational Documents, in each case as in effect on the date of this Agreement Agreement, or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and any of the Purchaser Parties in effect on the date hereof and disclosed in Section 7.7(a) of the Parent Disclosure Schedule, shall survive the Closing and continue in full force and effect in accordance with their respective terms subsequent to the extent permitted by applicable Law. For a period of six (6) years after the Reincorporation Effective Time. Further, Purchaser shall cause the Certificate Organizational Documents of Incorporation Purchaser and By-laws of the Company after the Effective Time shall to contain provisions no less favorable with respect to indemnification, exculpation and indemnification of and advancement of expenses and exculpation of former or present directors and officers to D&O Indemnified Persons than are presently set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws Organizational Documents of the CompanyPurchaser Parties to the extent permitted by applicable Law. The provisions of this Section 7.7 shall survive the Closing and are intended to be for the benefit of, which provisions and shall not be amendedenforceable by, repealed or otherwise modified for a period each of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such periodD&O Indemnified Persons and their respective heirs and representatives.
(b) The Company shall, at or shall cause its optionAffiliates to, either (A) purchase a tail policy of directors’ obtain and officers’ liability insurance which shall be in effect fully pay the premium for a “tail” insurance policy that provides coverage for up to a six-year period of six years from the Effective TimeClosing Date, for the benefit of the D&O Indemnified Persons (the “D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than Parent’s existing policy or, if available, and shall contain substantially the same equivalent insurance coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if availableis unavailable, the D&O Insurance Policies (best available coverage; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable), in either case with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Company be required to expend for such policies pursuant to this Section 10.06(b7.7(b) more than $2,500,000 as a an annual premium for the tail policy or an amount per year equal to in excess of 300% of current annual premiums paid the amount per annum payable by the Company for Parent under its current effective D&O insurance policies as of the date of this Agreement. Parent shall cause such insurance (which premiums the Company represents and warrants D&O Tail Insurance to be $940,000 maintained in full force and effect, for its full term, and cause the aggregate)other Purchaser Parties to honor all obligations thereunder. If any claim is asserted or made within such six year period, as the case may beprovisions of this Section 7.7(b) shall be continued in respect of such claim until the final disposition thereof.
(c) On the Closing Date, the Purchaser shall enter into customary indemnification agreements reasonably satisfactory to all parties with the individuals set forth on Section 7.7(c) of the Parent Disclosure Schedule, which indemnification agreements shall continue to be effective following the Closing.
(d) Notwithstanding anything contained in this Agreement to the contrary, this Section 7.7 shall survive the Effective Time and shall be binding, jointly and severally, on the Purchaser and all successors and assigns of the Purchaser for the longer of (i) six (6) years after the Effective Time or (ii) the lapse of the applicable statutes of limitations. In the event that the Company Purchaser or any of its successors or assigns (i) consolidates with or merges into any other another Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, the Purchaser shall ensure that proper provision shall be made so that the successors and assigns of the Company or at CIG’s option, CIG, Purchaser shall assume succeed to the obligations set forth in this Section 10.067.7.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Company agrees Parent and Merger Sub agree that all rights to exculpation, indemnification and exculpation from liabilities advancement of expenses for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expensesincluding any matters arising in connection with this Agreement or the Transactions) now existing in favor of the current or present and former directors or officers officers, directors, employees, and agents of the Company (the “Indemnified D&Os”) Company, as provided in its Certificate the Company’s articles of Incorporation or By-laws and any indemnification incorporation, bylaws or other agreements of the Company organizational documents or in any Contract as in effect on the date of this Agreement hereof, shall survive the Merger and shall continue in full force and effect in accordance with their terms subsequent to effect.
(b) For a period of six (6) years after the Effective Time. Further, Parent shall cause the Certificate Surviving Corporation (and its successors) to establish and maintain provisions in its articles of Incorporation and By-laws of incorporation, bylaws or other organizational documents concerning the Company after the Effective Time shall contain provisions no less favorable with respect to indemnification, advancement of expenses to, and exculpation of the former or present directors and officers than are presently set forth in the Certificate of Incorporation current officers, directors, employees, and By-laws agents of the CompanyCompany that are no less favorable to those persons than the provisions of the articles of incorporation, which provisions bylaws and other organizational documents of the Company as are in effect as of the date hereof. Parent shall not be amended, repealed or otherwise modified for cause the Surviving Corporation to honor its obligations under this Section 5.11 without limit as to time.
(c) For a period of six (6) years from after the Effective Time Time, Parent shall cause to be maintained in effect, without any manner that would adversely affect lapse in coverage, the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ and officers’ liability insurance which shall be in effect for a period of six years from maintained by the Effective TimeCompany (provided, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies (provided that the Surviving Corporation Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially no less favorable)advantageous to the present and former directors and officers of the Company (each such present and former director or officer, in either case together with such person’s heirs, executors or administrators, an “Indemnified Party” and collectively, the “Indemnified Parties”) than the current policies) with respect to matters occurring prior to arising at or before the Effective Time; provided, however, that (i) in no event shall lieu of the purchase of such insurance by Parent, the Company shall, at Parent’s option, if reasonably available, prior to the Effective Time, purchase a six-year extended reporting period endorsement under its existing directors’ and officers’ liability insurance coverage that (A) provides at least the same coverage and amounts as the Company’s current policy and (B) contains terms and conditions that are no less advantageous to the present and former directors and officers of the Company than the Company’s current policy, and (ii) during this period, Parent shall not be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium procure any coverage in excess of the amount that can be obtained for the tail policy or remainder of the period for an amount per year equal to annual premium of 300% of the current annual premiums premium paid by the Company for its existing coverage. Notwithstanding the foregoing, the Company may elect in lieu of the foregoing insurance, prior to the Effective Time, to obtain and fully pay for a policy (providing coverage for the Indemnified Parties and such officers) with a claims period of at least six (6) years from the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope no less favorable than the Company’s existing policies with respect to matters existing or occurring at or prior to the Effective Time; provided, that the cost thereof does not exceed 300% of the aggregate amount per annum that the Company paid for such coverage in the last full fiscal year; and provided, further, that the Company must obtain Parent’s written consent (which premiums consent will not be unreasonably withheld or delayed) to its choice of insurance carrier. If such “tail” policy has been obtained by the Company represents prior to the Effective Time, Parent and warrants the Surviving Corporation shall maintain such policy in full force and effect for its full term and shall continue to be $940,000 in honor the aggregate), as the case may beCompany’s obligations thereunder.
(cd) Without limiting the other provisions of this Section 5.11, to the fullest extent that the Company would be permitted by applicable law to do so, Parent shall cause the Surviving Corporation to: (i) indemnify and hold harmless each Indemnified Party against and from any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any alleged action or omission in such Indemnified Party’s capacity as a director, officer or employee of the Company prior to the Effective Time or (B) this Agreement or the Transactions, 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 Indemnified Party upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Company pursuant to Section 17-6305 of the KGCC. Any determination required to be made with respect to whether the conduct of any Indemnified Party complies or complied with any applicable standard shall be made by independent legal counsel selected by the 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 5.11(d) or elsewhere in this Agreement, no settlement, compromise, consent or termination of any claim, action, suit, proceeding or investigation will affect, limit or modify the obligations of Parent and the Surviving Corporation hereunder.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the articles of incorporation or bylaws of the Company, any other indemnification arrangement, the KGCC or otherwise. The provisions of this Section 5.11 shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties, and the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 5.11. The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing its indemnity and other rights under this Section 5.11.
(f) In the event the Company or that any of its Parent, the Surviving Corporation or their successors or assigns (i) consolidates with or merges into any other Person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any PersonPerson or entity, then, and in each such case, proper provision shall be made so that such continuing or surviving entity or transferee, as the successors and assigns of the Company or at CIG’s optioncase may be, CIG, shall assume assumes the obligations of Parent or the Surviving Corporation, as applicable, set forth in this Section 10.065.11.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Alco Stores Inc)
Directors’ and Officers’ Indemnification and Insurance. Conexant shall (ai) The Company agrees that indemnify and hold harmless, and provide advancement of expenses to, all rights past and present directors, officers and employees of GlobespanVirata and its Subsidiaries (in all of their capacities as such), to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by GlobespanVirata pursuant to GlobespanVirata's certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any such directors, officers and exculpation from liabilities employees of GlobespanVirata and its Subsidiaries for acts or omissions occurring at or prior to the Effective Time (and rights including for advancement of expenses) now existing acts or omissions occurring in favor of connection with the current or former directors or officers of the Company (the “Indemnified D&Os”) as provided in its Certificate of Incorporation or By-laws and any indemnification or other agreements of the Company as in effect on the date approval of this Agreement shall continue in full force and effect in accordance with their terms subsequent to the Effective Time. Further, the Certificate of Incorporation and By-laws consummation of the Company after the Effective Time shall contain provisions no less favorable with respect transactions contemplated hereby) and (ii) cause to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Certificate of Incorporation and By-laws of the Company, which provisions shall not be amended, repealed or otherwise modified maintained for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the DGCL during such period.
(b) The Company shall, at its option, either (A) purchase a tail policy current policies of directors’ ' and officers’ ' liability insurance which shall be in effect for a period of six years from the Effective Time, if available, and shall contain substantially the same coverage and amount as, and contain terms and conditions no less advantageous, in the aggregate, than the coverage provided in the D&O Insurance Policies or (B) use its reasonable best efforts to maintain in effect for six years from the Effective Time, if available, the D&O Insurance Policies fiduciary liability insurance maintained by GlobespanVirata (provided that the Surviving Corporation Conexant may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not materially less favorable)which are, in either case the aggregate, no less advantageous to the insured) with respect to matters occurring prior to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Company Conexant be required to expend pursuant to this Section 10.06(b) more than $2,500,000 as a premium for the tail policy or in any one year an amount per year equal to 300in excess of 200% of current the annual premiums currently paid by GlobespanVirata for such insurance; and, provided, further, that if the Company annual premiums for such insurance (which premiums the Company represents and warrants to be $940,000 in the aggregate)coverage exceed such amount, as the case may be.
(c) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision Conexant shall be made so that obligated to obtain a policy with the successors and assigns of the Company or at CIG’s option, CIG, shall assume the obligations set forth in this Section 10.06greatest coverage available for a cost not exceeding such amount.
(d) This Section 10.06 shall continue in effect subsequent to the Effective Time, is intended to benefit the Company and each Indemnified D&O, shall be binding on all successors and assigns of the Company, and shall be enforceable by the Indemnified D&O. The provisions of this Section 10.06 are intended to be for the benefit of, and will be enforceable by, each Indemnified D&O, his or her heirs, and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Conexant Systems Inc)
