Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements. (b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing. (c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4. (d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Purchaser agrees that any rights to indemnification, advancement of expenses, exculpation or other similar rights now existing in favor of, and all limitations on the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendpersonal liability of, modify or repeal the provisions for indemnification of any each present and former employee, agent, director or officer of the Company and its or the Company’s Subsidiaries (each, together with such person’s heirs, executors or administrators, an a “Indemnified Covered Party” and, collectively, the “Indemnified Parties”) contained provided for in the Organizational Documents respective organizational documents in effect as of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, date hereof shall continue in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in full force and effect (and with respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honorSubsidiaries, such provisions for indemnification contained shall be reflected in the Organizational Documents and terms applicable organizational documents of any indemnification agreements.
(b) For such entity), for a period of six (6) years after the Closing Date; provided, Buyer that the foregoing shall not apply to any claim based on a claim for indemnification made by a Covered Party pursuant to Article IX. During such period, the Purchaser shall not, nor shall it following the Closing permit the Company or the Company’s Subsidiaries to, amend, repeal or otherwise modify such provisions for indemnification or advancement of expenses in any manner that would adversely affect the rights thereunder of any Covered Party in respect of actions or omissions occurring at or prior to the Closing (including the transactions contemplated by this Agreement), unless such modification is required by Law. Notwithstanding anything in this Agreement to the contrary, any Covered Party seeking to enforce any such provisions for indemnification or advancements of expenses shall first seek recovery against the D&O Tail Policy referenced in Section 6.6(b) for any claim of exculpation or indemnification or expense advancement or reimbursement before pursuing any right of exculpation or indemnification or expense advancement or reimbursement directly against the Company and its Subsidiaries.
(b) On or prior to the Closing Date, the Purchaser shall, or if the Purchaser is unable to, the Sellers shall, or shall cause to be maintained in effect directors’ the Company to, have arranged for a fully paid and irrevocable “directors and officers” tail insurance policy (the “D&O Tail Policy”), which D&O Tail Policy will provide coverage for six (6) years following the Closing Date on terms which are no less favorable than the existing coverage maintained by the Company and the Company Subsidiaries (which policy has been provided by the Seller to the Purchaser prior to the date hereof). The Sellers shall pay for that portion of the D&O Tail Policy which provides substantially similar coverage as the existing coverage maintained by the Company and the Company Subsidiaries (such amount payable by the Sellers, the “D&O Tail Amount”), and the Purchaser shall pay for all incremental costs and expenses resulting from any coverage greater than the existing coverage maintained by the Company and the Company Subsidiaries to the extent such incremental costs and expenses relate to the coverage obtained by, at the direction of or with the written consent of the Purchaser and its Affiliates. The Purchaser and its Affiliates shall not amend or cancel such insurance policy during such six (6)-year period and shall reasonably cooperate with Sellers’ liability insurance to a minimum limit Designee (and their Affiliates), at the sole cost and expense of US$50 million Sellers’ Designee, with respect to claims arising from the pursuit of any claims, coverage or related the enforcement of rights thereunder. The provisions of this Section 6.6 are intended to facts be for the benefit of, and shall be enforceable by, each such Covered Party and such Person’s estate, heirs and representatives and are in addition to, and not in substitution for, any other rights to indemnification, advancement of expenses or events contribution that occurred at any such Covered Party may have pursuant to Law, the organizational documents of the Company and its Subsidiaries, contract or before the Closingotherwise.
(c) In If, following the event that, after the Closing DateClosing, the Purchaser or the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personassets, then, and in either each such case, to the extent necessary, proper provisions provision shall be made so that the successors and assigns of the Purchaser and the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.46.6.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Stock Purchase Agreement (Total System Services Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and the Surviving Corporation shall cause all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation now existing in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and or former employee, agent, director or officer of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”"INDEMNIFIED PARTIES") contained as provided in the Company Organizational Documents or in agreements between an Indemnified Party and the Company or one of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreementsSubsidiaries, in such each case, in effect on the date of this Agreement to survive the Merger and to continue in full force and effect for a manner as would adversely affect period of not less than six years after the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsEffective Time.
(b) For After the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, indemnify all Indemnified Parties to the fullest extent permitted by applicable Laws 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 Effective Time. If any Indemnified Party is or becomes involved in any Legal Action in connection with any matter occurring prior to or at the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, pay promptly after they are incurred such Indemnified Party's reasonable legal fees, costs and expenses incurred in connection with such Legal Action, subject to Parent's or the Surviving Corporation's, as applicable, receipt of an undertaking by or on behalf of such Indemnified Party, if required by the DGCL, to repay such legal fees, costs and expenses if it is ultimately determined under applicable Laws that such Indemnified Party is not entitled to be indemnified; PROVIDED, HOWEVER, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without the Surviving Company's written consent (which consent shall not be unreasonably withheld or delayed) and shall not be obligated to pay the fees and expenses of more than one counsel (selected by a period plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single Legal Action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action.
(c) Parent and the Surviving Corporation shall, jointly and severally, (i) maintain in effect for at least six (6) years after the Closing DateEffective Time, Buyer shall cause to be maintained in effect if available, the current policies of directors’ ' and officers’ ' liability insurance to maintained by the Company (provided that the Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous) or (ii) obtain as of the Effective Time "tail" insurance policies with a minimum limit claims period of US$50 million at least six years from the Effective Time with at least the same coverage and amounts containing terms and conditions which are no less advantageous, in each case, with respect to claims arising from out of or related relating to facts events which occurred before or events at the Effective Time so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 300% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement (such 300% amount being the "MAXIMUM PREMIUM"). The Company represents that occurred at such annual premium amount is set forth in Section 5.9(c) of the Company Disclosure Letter. If the Parent or before the ClosingSurviving Corporation are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, Parent and the Surviving Corporation shall, jointly and severally, instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium.
(cd) The covenants contained in this Section 5.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(e) In the event that, after that Parent or the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and or assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 5.45.9.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to In the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification event of any present and former employeethreatened or actual claim, agentaction, director suit, proceeding or officer of the Company and its Subsidiaries investigation, whether civil, criminal or administrative (each, together with such person’s heirsa “Proceeding”), executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entitieswhich any Person who is now, or the terms of has been at any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities time prior to the Closing, without a manager, director, officer or Affiliate of Company or any of its Subsidiaries (the prior written consent “Indemnified Persons”) is, or is threatened to be, made a party or witness thereto based in whole or in part on the fact that such Person is or was a manager, director, officer or Affiliate of each affected Indemnified PartyCompany or any of its Subsidiaries, and (ii) Buyer shall honorwhether in any case asserted or arising before, and shall cause on or after the Company Closing, the Surviving Corporation and its Subsidiaries to honor, andshall, to the fullest extent reasonably possiblepermitted by law, shall exercise the voting, governance indemnify and contractual powers available to the Company hold harmless such Indemnified Person from and its Subsidiaries to cause the Ilijan Entities to honor, against any and all Damages (including advancement of expenses) incurred in connection with or arising out of such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsProceeding.
(b) For An Indemnified Person shall notify the Surviving Corporation of the existence of a period Proceeding for which such Indemnified Person is entitled to indemnification hereunder as promptly as reasonably practicable after such Indemnified Person learns of six such Proceeding; provided that the failure to so notify shall not affect the obligations of the Surviving Corporation and its Subsidiaries under this Section 6.8 except to the extent such failure to notify actually prejudices the Surviving Corporation and its Subsidiaries. The Indemnified Person and the Surviving Corporation and its Subsidiaries shall cooperate fully with each other in connection with the defense of any Proceeding. No settlement of a Proceeding may be made by the Surviving Corporation or any of its Subsidiaries without the Indemnified Person’s consent, except for a settlement that requires no more than a monetary payment for which the Indemnified Person is fully indemnified and that does not require the admission of liability. No settlement of a Proceeding may be made by an Indemnified Person without the consent of the Surviving Corporation, unless such consent is unreasonably withheld, delayed or conditioned.
(6c) years after the Closing DateParent shall, Buyer or shall cause to be maintained in effect the Surviving Corporation to, maintain Company’s existing directors’ and officers’ liability insurance to or purchase a minimum limit so-called “tail” for such directors’ and officers’ liability insurance, in each case covering Persons who are currently covered by such insurance on terms no less favorable than those in effect on the date hereof for a period of US$50 million with respect to claims arising from or related to facts or events that occurred at or before least three years after the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 6.8 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyPerson and such Indemnified Person’s estate, his heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or her heirssuch Indemnified Person’s estate, executors heirs and representatives may have under the Company Articles of Incorporation, Company Bylaws, Subsidiary Organizational Documents, any Law, any contract or administrators otherwise.
(e) The obligations of the Surviving Corporation and his its Subsidiaries under this Section 6.8 shall continue in full force and effect for a period commencing as of the Effective Time and ending as of the later of (i) the six-year anniversary of the Closing and (ii) the date that all applicable statute of limitation periods have expired for any claim or her other representativesclaims for which an Indemnified Person may be entitled to indemnification under this Section 6.8; provided that all rights to indemnification in respect of any claim for indemnification under this Section 6.8 asserted or made within such period shall continue until the final disposition of such claim.
Appears in 1 contract
Samples: Merger Agreement (Intermec, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Without limiting any rights that any manager, director, executive officer or employee of Contributor or of its Affiliates may have under any indemnification agreement or the Organizational Documents of Contributor or as otherwise afforded by applicable Law (including promptly advancing expenses as incurred to the fullest extent required by law (i) Buyer will permitted under applicable Law), all of which shall survive the Closing, anything to the contrary contained in any Transaction Document notwithstanding, or under the Organizational Documents of Parent or the Contributee, in addition to, and not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification limitation of any present other indemnity rights contained in any Transaction Document, from and after the Closing Date, Parent and the Contributee shall, jointly and severally, indemnify and hold harmless the current or former employeemanagers, agentdirectors, director executive officers or officer employees of the Company Contributor and its Subsidiaries subsidiaries and Affiliates acting in their capacity as such (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “D&O Indemnified Parties”) contained to the fullest extent authorized or permitted under applicable Law, as now or hereafter in effect, for acts or omissions by such D&O Indemnified Parties occurring prior to the Closing Date. Without limiting the foregoing, Parent and the Contributee shall use reasonable efforts to, and shall use reasonable efforts to cause NewCo and each Contributed Subsidiary to, for a period of not less than six (6) years after the Closing Date, (i) maintain provisions in its Organizational Documents concerning the indemnification and exculpation (including provisions relating to expense advancement) of D&O Indemnified Parties that are no less favorable to those Persons than the provisions of the Organizational Documents of the CompanyContributor and its Subsidiaries, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreementsas applicable, in each case, as of the date of this Agreement, and (ii) not to amend, repeal or otherwise modify such a manner as provisions in any respect that would adversely affect the rights of any Indemnified Parties to be indemnified those Persons thereunder, in respect of their serving in such capacities prior to the Closingeach case, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsexcept as required by Law.
(b) For As of the Closing Date, Contributee shall have obtained, at its sole cost and expense, and, for a period of six (6) years after the Closing Date, Buyer Contributee shall cause to be maintained maintain in effect a policy of directors’ and officers’ liability insurance reasonably satisfactory to a minimum limit Contributor on terms not less favorable than the terms of US$50 million the directors’ and officers’ liability insurance coverage obtained by Contributor as in effect immediately prior to the Closing Date with respect to such individuals, in connection with the business of the Company Group with respect to claims arising from from, or related to facts or events that which occurred at or before the Closing.
(c) In the event thatbefore, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Contribution Agreement (Rw Holdings NNN Reit, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to The Merger Agreement provides for indemnification, advancement of expenses and exculpation from liabilities in favor of the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present current and former employeedirectors, agent, director officers and employees of Xxxx or officer any of the Company and its Subsidiaries subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”). Parent has agreed that all rights to indemnification, exculpation and advancement of expenses as provided in Xxxx’x organizational Table of Contents documents or agreements of Xxxx or its subsidiaries and certain indemnified parties will continue in full force and effect for a period of not less than six (6) contained years (plus ninety (90) days after the Effective Time (the “Indemnity Period”), or, if longer, for such period as is set forth in any applicable agreement. In addition, Xxxxxx has agreed that during the Organizational Documents Indemnity Period Parent and the Surviving Corporation will indemnify all Indemnified Parties to the fullest extent permitted by applicable Law with respect to all acts and omissions arising out of the Companyor relating to their services as directors, officers or employees of Xxxx, its Subsidiaries or another Person, if such Indemnified Party is or was serving as a director, officer or employee of such other Person at the Ilijan Entitiesrequest of Xxxx, whether asserted or claimed before, at or after, or occurring before or at, the terms of any indemnification agreements, in such a manner as would adversely affect the rights of Effective Time. If any Indemnified Parties Party is or becomes involved in any Legal Action in connection with any matter subject to be indemnified indemnification, then Parent shall cause the Surviving Corporation to advance as incurred any costs or expenses (including legal fees and disbursements), judgments, fines, losses, claims, damages or Liabilities (“Damages”) arising out of or incurred in respect of their serving in connection with such capacities prior Legal Action, subject to the Closing, without the prior written consent Surviving Corporation’s receipt of each affected an undertaking by or on behalf of such Indemnified Party, if required by the MGCL, to repay such Damages if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified. In the event of any such Legal Action, (i) each of Parent and the Surviving Corporation shall cooperate with the Indemnified Party in the defense of any such Legal Action and (ii) Buyer neither Parent nor the Surviving Corporation shall honorsettle, compromise or consent to the entry of any judgment, in each case on behalf of an Indemnified Party, in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and shall cause in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action For the Company Indemnity Period, Parent and its Subsidiaries the Surviving Corporation have agreed to honormaintain the current policies of directors’ and officers’ liability insurance maintained by Xxxx or policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the negotiation and execution of the Merger Agreement and the consummation of the Transactions or otherwise) so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 350% of the last annual premium paid by Xxxx for such insurance before the date of this Agreement (such 350% amount being the “Maximum Premium). If Parent or the Surviving Corporation are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, then Parent and the Surviving Corporation will, 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 such arrangements, before the Effective Time, Xxxx will be entitled to purchase a “tail” directors’ and officers’ liability insurance policy covering the matters described above and, if Xxxx elects to purchase such a policy before the extent reasonably possibleEffective Time, shall exercise then Parent and the voting, governance Surviving Corporation’s obligations will be satisfied so long as Parent and contractual powers available the Surviving Corporation cause such policy to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions be maintained in effect for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after following the Closing DateEffective Time; provided, Buyer shall cause that Xxxx will use its reasonable best efforts to be maintained apply any returned premium received by Xxxx in effect connection with Xxxx’x current policies of directors’ and officers’ liability insurance as a result of the Transactions contemplated by the Merger Agreement to a minimum limit the cost of US$50 million with respect such “tail” policy. Reasonable Best Efforts. Each of Xxxx, Purchaser and Parent has agreed to, and to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of cause their respective Subsidiaries affiliates to, use reasonable best efforts to take, or any of their respective successors cause to be taken, all actions and to do, or assigns (i) consolidates with or merges into any other person and shall not cause to be the continuing or surviving entity of such consolidation or merger or (ii) transfers done, all or a substantial portion of its properties and assets to any person, then, and in either such casethings necessary, proper provisions shall be made so or advisable to ensure that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations conditions set forth in this Section 5.4the Merger Agreement, including the Offer Conditions, are satisfied and to consummate the Transactions as promptly as practicable.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Offer to Purchase (Moodys Corp /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Purchaser agree that any rights to indemnification or exculpation now existing in favor of, and all limitations on the extent required by law (i) Buyer will not take any action (including the exercise personal liability of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any each present and former director, officer, employee, agent, director fiduciary or officer agent of the Company Seller and its Subsidiaries (the “Indemnified Parties” and, each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained provided for in the Organizational Documents respective organizational documents, in effect as of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Partydate hereof, and the indemnification agreements set forth in Section 7.5 of the Seller Disclosure Schedule shall continue in full force and effect (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries with respect to honor, and, to the extent reasonably possibleSeller, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained be reflected in the Organizational Documents and terms applicable organizational documents of any indemnification agreements.
(b) For such entity), for a period of six (6) years after the Closing Acceptance Date. During such period, Parent shall not, nor shall it permit the Surviving Corporation to, amend, repeal or otherwise modify such provisions for indemnification in any manner that would materially and adversely affect the rights thereunder of any individual who at any time on or prior to the Acceptance Date was a director, officer, employee, fiduciary or agent of Seller or its Subsidiaries in respect of actions or omissions occurring at or prior to the Acceptance Date (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by Law; provided, however, that in the event any claim or claims are asserted or made either prior to the Acceptance Date or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims.
(b) Prior to the Acceptance Date, Buyer Seller shall, to the fullest extent permitted under applicable Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Acceptance Date until the sixth (6th) anniversary of the Acceptance Date, Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless, each present and former director or officer of Seller and each Subsidiary of Seller (collectively, the “Covered Parties”) against all costs and expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Acceptance Date), whether civil, administrative or investigative, arising out of or pertaining to any action or omission in their capacities as officers or directors, in each case occurring before the Acceptance Date (including the transactions contemplated by this Agreement). Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) Seller or Parent and the Surviving Corporation, as the case may be, shall cause be entitled to control the defense of such claim, action, suit, proceeding or investigation, (ii) if Seller, Parent or the Surviving Corporation (or counsel selected by the applicable insurer of Seller or the Surviving Corporation) does not elect to control the defense of such claim, action, suit, proceeding or investigation, the Covered Party shall be maintained entitled to select counsel for the Covered Party, which counsel shall be reasonably satisfactory to Seller or to Parent and the Surviving Corporation, as the case may be, and Seller or Parent and the Surviving Corporation shall pay the fees and expenses of such counsel promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action), (iii) the Covered Party shall cooperate in effect the defense of any such matter, and (iv) none of Seller, Parent or the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed).
(c) At or prior to the Acceptance Date, Seller shall purchase directors’ and officers’ liability insurance (which by its terms shall survive the Offer and the Merger) for its directors and officers, which shall provide such directors and officers with coverage for six (6) years following the Acceptance Date on terms acceptable to a minimum limit of US$50 million with respect Seller, so long as the aggregate cost is less than $1,000,000. Parent shall, and shall cause the Surviving Corporation to, maintain such policy in full force and effect, and continue to claims arising from or related to facts or events that occurred at or before honor the Closingobligations thereunder.
(cd) The obligations under this Section 7.5 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.5 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 7.5 applies shall be third party beneficiaries of this Section 7.5 and shall be entitled to enforce the covenants contained herein).
(e) In the event that, after Parent or the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personassets, then, and in either each such case, to the extent necessary, proper provisions provision shall be made so that the successors and assigns of Parent and the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.47.5.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (BladeLogic, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Certificate of Incorporation of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation of the Company and set forth in any indemnification agreement currently in effect between the Company and any officer, director, employee or former officer, former director, or former employee, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the extent required by law (i) Buyer will not take Effective Time, were directors, officers, employees, fiduciaries or agents of the Company or any action (including of the exercise of voting rights Subsidiaries; and provided, that, in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions event that any claim for indemnification is asserted or made within such six year period, all rights to indemnification in respect of any such claim shall continue until the final disposition of such claim.
(b) After the Effective Time, the Surviving Corporation and Parent shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless, each present and former employee, agent, director or and officer of the Company and its Subsidiaries each Subsidiary (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “"Indemnified Parties”") contained against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, occurring on or before the Effective Time, to the same extent as provided in the Organizational Documents Certificate of Incorporation of the Company, its Subsidiaries Company or any other applicable contract or agreement in effect on the Ilijan Entities, or date hereof. In the terms event of any indemnification agreementssuch claim, in such a manner as would adversely affect action, suit, proceeding or investigation, (i) the rights Surviving Corporation shall pay the reasonable fees and expenses of any counsel selected by the Indemnified Parties to Parties, which counsel shall be indemnified in respect of their serving in such capacities prior reasonably satisfactory to the ClosingSurviving Corporation, without promptly after statements therefor are received (provided the prior written consent of each affected applicable Indemnified Party, Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification) and (ii) Buyer the Surviving Corporation shall honorcooperate in the defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without the Surviving Corporation's written consent (which consent shall not be unreasonably withheld or delayed); and provided, further, that the Surviving Corporation shall cause not be obligated pursuant to this Section 6.05(b) to pay the Company fees and its Subsidiaries expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to honor, and, any single action except to the extent reasonably possible, that two or more of such Indemnified Parties shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, have conflicting interests in such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsaction.
(bc) For a period of six The Surviving Corporation shall either (6i) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability obtained at the Effective Time "tail" insurance to policies with a minimum limit claims period of US$50 million at least six years from the Effective Time with respect to directors' and officers' liability insurance in amount and scope at least as favorable as the Company's existing policies for claims arising from or related to facts or events that occurred on or prior to the Effective Time from an insurer with an insurer financial strength rating by A.M. Best Co. of at least "A"; or before (ii) maintain in effect for six years from the ClosingEffective Time, if available, the 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 less favorable) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.05(c) more than an amount per year equal to 250% of the current annual premiums paid by the Company for such insurance; provided, however, that in the event of an expiration, termination or cancellation of such current policies, the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(cd) This Section 6.05 shall survive the consummation of the Merger and is intended to be for the benefit of, and shall be enforceable by, present or former directors and, officers of the Company or its Subsidiaries, their respective heirs and personal representatives and shall be binding on the Surviving Corporation and its successors and assigns. In the event that, after that the Closing Date, the Company Parent or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personperson (including by dissolution), then, and in either each such case, Parent shall cause proper provisions shall provision to be made so that the successors and assigns of the Company, its Subsidiaries Parent or Buyer, as the case may be, shall Surviving Corporation assume and honor the obligations set forth in this Section 5.46.05. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any such present or former director or officer is entitled, whether pursuant to Law, contract or otherwise. Nothing in this Agreement is intended to, shall be construed to 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 such claims under any such policies.
(de) The provisions From and after Closing, Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives6.05.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to For six (6) years after the extent required by law (i) Buyer will not take any action (including Effective Time, Parent shall cause the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Surviving Company and its Subsidiaries to honor and fulfill in all respects the obligations of the Company under its certificate of incorporation and bylaws and its Subsidiaries under their respective certificates of incorporation and bylaws (eachand other similar organizational documents) and all agreements for indemnification, together with such person’s heirsexculpation of liability or advancement of expenses, executors in effect as of the date hereof between the Company or administrators, an “Indemnified Party” and, collectively, any of its Subsidiaries and any of their respective current or former directors or officers or any person who becomes a director or officer prior to the Effective Time (the “Indemnified Parties”) contained ), all of which shall continue in the Organizational Documents of the Companyfull force and effect in accordance with their terms and shall not be amended, its Subsidiaries repealed or the Ilijan Entities, or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of such Indemnified Parties. The foregoing notwithstanding, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Parties Party with respect to be indemnified in respect of their serving in such capacities matters subject to indemnification hereunder on or prior to the Closingsixth anniversary of the Effective Time, without the prior written consent rights to indemnification and exculpation from liabilities and advancement of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained expenses referenced in the Organizational Documents and terms preceding sentence shall continue in effect until the final disposition of any indemnification agreementssuch claim, action, suit, proceeding or investigation.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent and the Surviving Company shall cause to be maintained maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”) in respect of facts, events, acts or omissions occurring at or prior to a minimum limit of US$50 million the Effective Time, covering each person covered by the D&O Insurance immediately prior to the Effective Time, on terms with respect to claims arising from or related the coverage and amounts no less favorable to facts or events such insured persons than those of the D&O Insurance in effect on the date of this Agreement; provided, however, that occurred the Surviving Company may, at or before the Closing.
(c) In the event thatits option, after the Closing Datesubstitute therefor policies of Parent, the Surviving Company or Buyer or any of their respective Subsidiaries containing terms with respect to coverage and amounts no less favorable to such insured persons than the D&O Insurance, provided further, however, that in satisfying its obligations under this Section 6.13(b), Parent and the Surviving Company shall not be obligated Table of Contents to pay annual premiums in excess of two hundred thirty-five percent (235%) of the amount paid by the Company for such insurance coverage for its last full fiscal year (such two hundred thirty-five percent (235%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be 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 to the insured Persons, in the aggregate, than the D&O Insurance and for an amount not to exceed two hundred thirty-five percent (235%) of the amount paid by the Company 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 to the insured Persons, in the aggregate, than the D&O Insurance. In the event that either the Company or any of 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 successors 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) Each of the Indemnified Parties or assigns other persons who are beneficiaries under the D&O Insurance, the indemnification rights referred to in Section 6.13(a) 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 (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, then proper provisions provision shall be made so that the successors and assigns such continuing or surviving entity or transferee of the Company, its Subsidiaries or Buyersuch assets, as the case may be, shall assume the obligations set forth in this Section 5.4.
6.13. The rights of the Indemnified Parties (dand other persons who are beneficiaries under the D&O Insurance, the indemnification rights referred to in Section 6.13(a) The provisions of or the Tail Policy referred to in Section 6.13(b) (and their heirs and representatives)) under this Section 5.4 are intended to 6.13 shall be for the benefit ofin addition to, and shall be enforceable bynot in substitution for, any other rights that such persons may have under the certificate of incorporation, bylaws or other equivalent organizational documents and 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 addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesequity).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to For six (6) years after the extent required by law (i) Buyer will not take any action (including Effective Time, Parent shall cause the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Surviving Company and its Subsidiaries to honor and fulfill in all respects the obligations of the Company under its certificate of incorporation and bylaws and its Subsidiaries under their respective certificates of incorporation and bylaws (eachand other similar organizational documents) and all agreements for indemnification, together with such person’s heirsexculpation of liability or advancement of expenses, executors in effect as of the date hereof between the Company or administrators, an “Indemnified Party” and, collectively, any of its Subsidiaries and any of their respective current or former directors or officers or any person who becomes a director or officer prior to the Effective Time (the “Indemnified Parties”) contained ), all of which shall continue in the Organizational Documents of the Companyfull force and effect in accordance with their terms and shall not be amended, its Subsidiaries repealed or the Ilijan Entities, or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of such Indemnified Parties. The foregoing notwithstanding, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Parties Party with respect to be indemnified in respect of their serving in such capacities matters subject to indemnification hereunder on or prior to the Closingsixth anniversary of the Effective Time, without the prior written consent rights to indemnification and exculpation from liabilities and advancement of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained expenses referenced in the Organizational Documents and terms preceding sentence shall continue in effect until the final disposition of any indemnification agreementssuch claim, action, suit, proceeding or investigation.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent and the Surviving Company shall cause to be maintained maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”) in respect of facts, events, acts or omissions occurring at or prior to a minimum limit of US$50 million the Effective Time, covering each person covered by the D&O Insurance immediately prior to the Effective Time, on terms with respect to claims arising from or related the coverage and amounts no less favorable to facts or events such insured persons than those of the D&O Insurance in effect on the date of this Agreement; provided, however, that occurred the Surviving Company may, at or before the Closing.
(c) In the event thatits option, after the Closing Datesubstitute therefor policies of Parent, the Surviving Company or Buyer or any of their respective Subsidiaries containing terms with respect to coverage and amounts no less favorable to such insured persons than the D&O Insurance, provided further, however, that in satisfying its obligations under this Section 6.13(b), Parent and the Surviving Company shall not be obligated to pay annual premiums in excess of two hundred thirty-five percent (235%) of the amount paid by the Company for such insurance coverage for its last full fiscal year (such two hundred thirty-five percent (235%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be 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 to the insured Persons, in the aggregate, than the D&O Insurance and for an amount not to exceed two hundred thirty-five percent (235%) of the amount paid by the Company 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 to the insured Persons, in the aggregate, than the D&O Insurance. In the event that either the Company or any of 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 successors 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) Each of the Indemnified Parties or assigns other persons who are beneficiaries under the D&O Insurance, the indemnification rights referred to in Section 6.13(a) 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 (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, then proper provisions provision shall be made so that the successors and assigns such continuing or surviving entity or transferee of the Company, its Subsidiaries or Buyersuch assets, as the case may be, shall assume the obligations set forth in this Section 5.4.
6.13. The rights of the Indemnified Parties (dand other persons who are beneficiaries under the D&O Insurance, the indemnification rights referred to in Section 6.13(a) The provisions of or the Tail Policy referred to in Section 6.13(b) (and their heirs and representatives)) under this Section 5.4 are intended to 6.13 shall be for the benefit ofin addition to, and shall be enforceable bynot in substitution for, any other rights that such persons may have under the certificate of incorporation, bylaws or other equivalent organizational documents and 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 addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesequity).
Appears in 1 contract
Samples: Merger Agreement (Oclaro, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to ESSA Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any time before the extent required by law (i) Buyer will not take any action (including date hereof or who becomes before the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administratorsEffective Time, an “Indemnified Party” and, collectively, officer or director of FS Bancorp or an FS Bancorp Subsidiary (the “Indemnified Parties”) contained against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without settlement (which settlement shall require the prior written consent of ESSA Bancorp, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each affected a “Claim”), in which an Indemnified PartyParty is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of the fact that such person is or was a director, officer or employee of FS Bancorp or an FS Bancorp Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including, without limitation, the Merger and (ii) Buyer shall honorthe other transactions contemplated hereby), and shall cause regardless of whether such Claim is asserted or claimed before, or after, the Company and its Subsidiaries to honor, andEffective Time, to the fullest extent reasonably possibleas would have been permitted by FS Bancorp under Pennsylvania law and under FS Bancorp’s Articles of Incorporation and Bylaws. ESSA Bancorp shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by FS Bancorp under Pennsylvania law and under FS Bancorp’s Articles of Incorporation and Bylaws, upon receipt of an undertaking to repay such advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 6.09 upon learning of any Claim, shall exercise notify ESSA Bancorp (but the votingfailure so to notify ESSA Bancorp shall not relieve it from any liability which it may have under this Section 6.09, governance and contractual powers available except to the Company extent such failure materially prejudices ESSA Bancorp) and its Subsidiaries shall deliver to cause ESSA Bancorp the Ilijan Entities undertaking referred to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsprevious sentence.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer that either ESSA Bancorp or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving bank or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, ESSA Bancorp shall assume the obligations set forth in this Section 5.46.09.
(c) ESSA Bancorp shall maintain, or shall cause ESSA Bank to maintain, in effect for up to six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of FS Bancorp (provided, that ESSA Bancorp may substitute therefore policies of at least the same coverage containing terms and conditions which are not materially less favorable to the officers and directors of FS Bancorp and the FS Bancorp Subsidiaries) with respect to matters occurring at or prior to the Effective Time; provided, however, that in no event shall ESSA Bancorp be required to expend pursuant to this Section 6.09(c) an aggregate amount to exceed $45,000 with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the aggregate premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, ESSA Bancorp shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, FS Bancorp agrees in order for ESSA Bancorp to fulfill its agreement to provide directors and officers liability insurance policies for up to six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims. For the avoidance of doubt, nothing contained in the Section 6.09(c) limits ESSA Bancorp’s obligations under 6.09(a) or 6.09(b) or ESSA Bancorp’s or FS Bancorp’s obligations under Pennsylvania or Pennsylvania law.
(d) The provisions obligations of ESSA Bancorp provided under this Section 5.4 6.09 are intended to be for enforceable against ESSA Bancorp directly by the benefit of, Indemnified Parties and shall be enforceable bybinding on all respective successors and permitted assigns of ESSA Bancorp.
(e) To the extent a person is entitled to indemnification from ESSA Bancorp pursuant to Section 6.09(a) with respect to a claim, in addition cause of action or other liability, ESSA Bancorp agrees to Sellersrelease such person with respect to such claim, each Indemnified Party, his cause of action or her heirs, executors or administrators and his or her other representativesliability.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Company shall (A) indemnify and hold harmless all past and present directors and officers of Toreador and its Subsidiaries (in all of their capacities) (x) to the same extent required such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by law Toreador pursuant to Toreador’s certificate of incorporation, by-laws and indemnification agreements, if any, in existence on the date hereof with any directors, officers and employees of Toreador and its Subsidiaries and (iy) Buyer will not take any action without limitation to clause (x), to the fullest extent permitted by Applicable Law, in each case for acts or omissions in their capacities as directors and officers occurring at or prior to the Effective Time (including the exercise of voting rights for acts or omissions occurring in connection with the Ilijan Entities) so as to amend, modify or repeal approval of this Agreement and the provisions for indemnification of any present and former employee, agent, director or officer consummation of the Company transactions contemplated hereby), (B) include and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect in Toreador Surviving Corporation’s (or any successor’s) certificate of incorporation and by-laws after the Effective Time provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses which are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in Toreador’s certificate of incorporation and by-laws, (C) periodically advance to any such indemnitee its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to clause (c) of this Section 6.13, and subject to the providing by such indemnitee of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such indemnitee is not entitled thereto and (D) cause to be maintained for a period of six years after the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (“D&O Insurance”) maintained by Toreador (provided that Toreador Surviving Corporation (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to a minimum limit of US$50 million the insured) with respect to claims arising from or related to facts or events that occurred at on or before the Effective Time; provided, however, that in no event shall the Company or Toreador Surviving Corporation be required pursuant to this Section 6.13(a) to expend in any one year an amount in excess of 300% of the last annual premium paid by Toreador for such insurance prior to the date hereof, the amount of such annual premium being set forth in Section 6.13(a) of the Toreador Disclosure Letter; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Toreador Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. Toreador may extend coverage, effective as of the Effective Time, under Toreador’s D&O Insurance by obtaining a six-year “tail” policy prior to the Closing on terms and conditions no less advantageous to the covered persons than Toreador’s existing D&O Insurance, and such “tail” policy shall satisfy the provisions of this Section 6.13(a). If such “tail” policy has been obtained by Toreador prior to the Closing, Toreador Surviving Corporation shall maintain such policies in full force and effect and continue to honor Toreador’s obligations thereunder. From and after the Effective Time, the Company will guarantee the obligations of Toreador Surviving Corporation under this Section 6.13(a).
(b) The Company shall (A) indemnify and hold harmless all past and present directors and officers of ZaZa and its Subsidiaries (in all of their capacities) (x) to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by ZaZa pursuant to the ZaZa Organizational Documents and indemnification agreements, if any, in existence on the date hereof with any directors, officers and employees of ZaZa and its Subsidiaries and (y) without limitation to clause (x), to the fullest extent permitted by Applicable Law, in each case for acts or omissions in their capacities as directors and officers occurring at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), (B) include and cause to be maintained in effect in the ZaZa Surviving Company (or any successor’s) limited liability company agreement or other organizational documents after the Effective Time provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses which are, in the aggregate, no less advantageous to the intended beneficiaries than the corresponding provisions contained in the ZaZa Organizational Documents, (C) periodically advance to any such indemnitee its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the following clause (c) of this Section 6.13, and subject to the providing by such indemnitee of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such indemnitee is not entitled thereto and (D) cause to be maintained for a period of six years after the Effective Time the current D&O Insurance maintained by ZaZa (provided that ZaZa Surviving Company (or any successor) may substitute therefor one or more policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to claims arising from facts or events that occurred on or before the Effective Time; provided, however, that in no event shall the Company or the ZaZa Surviving Company be required pursuant to this Section 6.13(b) to expend in any one year an amount in excess of 300% of the last annual premium paid by ZaZa for such insurance prior to the date hereof, the amount of such annual premium being set forth in Section 6.13(b) of the ZaZa Disclosure Letter; provided, further, that if the annual premiums of such insurance coverage exceed such amount, the ZaZa Surviving Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. ZaZa may extend coverage, effective as of the Effective Time, under ZaZa’s D&O Insurance by obtaining a six-year “tail” policy prior to the Closing on terms and conditions no less advantageous to the covered persons than ZaZa’s existing D&O Insurance, and such “tail” policy shall satisfy the provisions of this Section 6.13(b). If such “tail” policy has been obtained by ZaZa prior to the Closing, the ZaZa Surviving Company shall maintain such policies in full force and effect and continue to honor ZaZa’s obligations thereunder. From and after the Effective Time, the Company will guarantee the obligations of the ZaZa Surviving Company under this Section 6.13(b).
(c) Neither Surviving Corporation shall be obligated to pay the fees and expenses of more than one counsel for all indemnitees in any single claim except to the extent that, in the opinion of independent legal counsel selected by the indemnitee, which counsel shall be reasonably acceptable to the Company, representation of two or more of such indemnitees would present a conflict of interest under applicable standards of conduct in the legal profession. Neither Surviving Corporation shall be liable for any settlement effected without its written consent, which consent shall not unreasonably be withheld.
(d) The obligations of the Company and the Surviving Companies under this Section 6.13 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.13 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 6.13 applies shall be third party beneficiaries of this Section 6.13). In the event thatthat the Company, after the Closing Date, the Company Toreador Surviving Corporation or Buyer or any of their respective Subsidiaries ZaZa or any of their respective successors or assigns (iA) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (iiB) transfers all or a substantial portion of substantially all its properties and assets to any person, then, then and in either such each case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries such person or Buyer, as the case may be, shall entity assume the indemnification obligations set forth in this Section 5.46.13.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. 7.10.1 1855 Bancorp shall maintain, or shall cause Compass Bank to maintain, in effect for six years from the Effective Time, if available, the current directors' and officers' liability insurance policies maintained by Sandwich (aprovided, that 1855 Bancorp may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) Except with respect to matters occurring prior to the extent Effective Time; provided, however, that in no event shall 1855 Bancorp be required by law (i) Buyer will not take any action (including to expend pursuant to this Section 7.10.1 more than $60,000 in the exercise of voting rights in aggregate. In connection with the Ilijan Entities) so as foregoing, Sandwich agrees to amend, modify provide such insurer or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together substitute insurer with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in representations as such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million insurer may request with respect to claims arising from the reporting of any prior claims.
7.10.2 From and after the Effective Time, 1855 Bancorp shall, or related to facts shall cause Compass Bank to, indemnify, defend and hold harmless each person who is now, or events that occurred who has been at or any time before the Closing.
(c) In date hereof or who becomes before the event thatEffective Time, after an officer or director of Sandwich or the Closing Date, the Company or Buyer or any of their respective Sandwich Subsidiaries or any of their respective subsidiaries (the "Indemnified Parties") against all losses, claims, damages, costs, expenses (including attorney's fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of 1855 Bancorp, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a "Claim"), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of Sandwich or any of its subsidiaries 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 at or after, the Effective Time (the "Indemnified Liabilities"), to the fullest extent permitted under applicable state or federal law in effect as of the date hereof or as amended applicable to a time before the Effective Time and under Sandwich's and Sandwich Bank's Articles of Organization or Charter and By-Laws. 1855 Bancorp shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by applicable state or federal law in effect as of the date hereof or as amended applicable to a time before the Effective Time upon receipt of an undertaking to repay such advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.10.2 upon learning of any Claim, shall notify 1855 Bancorp (but the failure so to notify 1855 Bancorp shall not relieve it from any liability which it may have under this Section 7.10.2, except to the extent such failure materially prejudices 1855 Bancorp) and shall deliver to 1855 Bancorp the undertaking referred to in the previous sentence. In the event of any such Claim (whether arising before or after the Effective Time) (1) 1855 Bancorp shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption 1855 Bancorp shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if 1855 Bancorp 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 1855 Bancorp and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them, and 1855 Bancorp shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) 1855 Bancorp shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be paid promptly as statements are received, (3) 1855 Bancorp shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (4) no Indemnified Party shall be entitled to indemnification hereunder with respect to a matter as to which (x) he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of Sandwich or any 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 in the reasonable belief that his action was in the best interests of Sandwich or any Subsidiary. The determination shall be made by a majority vote of the Directors of 1855 Bancorp who were formerly directors of Sandwich and who are not involved in such proceeding (the "Former Sandwich Directors"), or, if a majority of the Former Sandwich Directors are involved in the proceeding, by a committee of three disinterested Former Sandwich Directors chosen by all of the Former Sandwich Directors for the purpose of making such determination.
7.10.3 In the event that either 1855 Bancorp or Compass Bank or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving bank or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, 1855 Bancorp shall assume the obligations set forth in this Section 5.47.10.
(d) 7.10.4 The provisions obligations of 1855 Bancorp provided under this Section 5.4 7.10 are intended to be for enforceable against 1855 Bancorp directly by the benefit of, Indemnified Parties and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators binding on all respective successors and his or her other representativespermitted assigns of 1855 Bancorp.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except 7.6.1. To the maximum extent permitted by applicable Legal Requirements, all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation from liability for acts or omissions occurring in connection with or prior to the Ilijan Entities) so as Closing now existing in favor of each Person who is now, or has been at any time prior to amendthe date hereof or who becomes prior to the Closing, modify a director, officer, employee or repeal the provisions for indemnification agent of any present and former employeeAcquired Company (“D&O Indemnified Persons”), agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained including as provided in the Organizational Documents of the any Acquired Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of Contract between any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Acquired Company and its Subsidiaries to honorany D&O Indemnified Person set forth on Schedule 7.6.1, and, to will survive the extent reasonably possible, shall exercise the voting, governance Closing and contractual powers available to the Company will continue in full force and its Subsidiaries to cause the Ilijan Entities to honor, such provisions effect in accordance with their respective terms for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of not less than six (6) years after the Closing Date (or, in the case of any Contract, in accordance with its terms), and will not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any D&O Indemnified Person.
7.6.2. On or before the Closing Date, Buyer shall Parent will obtain for the Company and for the benefit of the D&O Indemnified Persons, and beginning on the Closing Date and for at least a six (6) year period thereafter, Parent will cause the Surviving Corporation to be maintained maintain in effect effect, a so-called “tail” policy for such period covering acts or omissions occurring on or before the Closing Date with respect to those Persons who are currently covered by the Acquired Companies’ directors’ and officers’ liability insurance to a minimum limit of US$50 million policies or employment practices liability insurance policies on terms with respect to claims arising from such coverage and amounts at least as favorable to such Persons as those of such policies in effect on the date hereof.
7.6.3. It is the intent of the parties that with respect to all obligations with respect to indemnification and advancement of expenses under this Section 7.6 that the Acquired Companies shall be the indemnitors of first resort and accordingly shall be the primary source of advancement, reimbursement and indemnification relative to any Person that was a direct or related to facts or events that occurred indirect holder of Equity Interests of any Acquired Company at or before prior to the ClosingClosing (or any Person that is or was an Affiliate of such holder of Equity Interests, other than any Acquired Company). Neither Parent nor any Acquired Company shall have the right to seek contribution, indemnity or other reimbursement for any of its obligations under this Section 7.6 from any such Person that was a direct or indirect holder of Equity Interests of any Acquired Company at or prior to the Closing (or any Person that is or was an Affiliate of such holder of Equity Interests, other than any Acquired Company).
(c) In the event that, after the Closing Date, the Company or Buyer or 7.6.4. If any of their respective Subsidiaries the Acquired Companies (or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (iiassigns) transfers all or a substantial portion substantially all of its Equity Interests, properties and or assets to any personPerson, through any single transaction or combination of transactions of any kind, then, and in either each such case, Parent will cause proper provisions shall provision to be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume such Person fully assumes the obligations set forth in this Section 5.47.6.
(d) The provisions of this 7.6.5. This Section 5.4 are intended to 7.6 shall be for the benefit of, and shall be enforceable by, any Person that was a direct or indirect holder of Equity Interests of any Acquired Company at or prior to the Closing (and any Person that is or was an Affiliate of such holder of Equity Interests, other than any Acquired Company) and any D&O Indemnified Person, and in addition to Sellerseach case, each Indemnified Partytheir respective successors, his or her assigns, heirs, executors or executors, administrators and his or her other representativesestates, and such Persons shall be express third party beneficiaries of this Agreement for such purposes.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Closing, the Buyer shall, and shall cause each Acquired Company to, cause all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation now existing in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and or former employee, agent, director or officer of the any Acquired Company and its Subsidiaries or Acquired Company Employee (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Lucky Indemnified Parties”) contained as provided in (i) the Acquired Company Organizational Documents of the CompanyDocuments, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honorthe minutes of any meetings of the board of directors (or equivalent governing body) of any Acquired Company or any committee thereof identified on Section 7.6 of the Seller Disclosure Letter, or (iii) agreements existing as of the date of this Agreement between a Lucky Indemnified Party and shall cause the Company and its Subsidiaries to honor, andany Acquired Company, to survive the extent reasonably possibleStock Purchase and to continue in full force and effect for a period of not less than six (6) years after the Closing Date or, shall exercise if longer, for such period as is set forth in any applicable agreement with an Lucky Indemnified Party in effect on the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms date of any indemnification agreementsthis Agreement.
(b) For From and after the Closing, the Buyer shall, and shall cause each Acquired Company to, jointly and severally, indemnify all Lucky Indemnified Parties to the fullest extent permitted by applicable Law with respect to all acts and omissions arising out of or relating to their services as directors, officers or employees of an Acquired Company, whether asserted or claimed at or after or occurring before the Closing Date (including in connection with the negotiation and execution of this Agreement and the consummation of the Stock Purchase). If any Lucky Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to indemnification hereunder, then the Buyer shall, and shall cause each Acquired Company to, jointly and severally, advance as incurred any Damages arising out of or incurred in connection with such Legal Action, subject to the Buyer’s receipt of an undertaking by or on behalf of such Lucky Indemnified Party, if permitted by applicable Law, to repay such Damages if it is ultimately determined under applicable Law that such Lucky Indemnified Party is not entitled to be indemnified. In the event of any such Legal Action, (i) the Buyer shall, and shall cause each Acquired Company to, cooperate with the Lucky Indemnified Party in the defense of any such Legal Action and (ii) the Buyer shall not, and shall cause each Acquired Company not to, settle, compromise or consent to the entry of any judgment in any Legal Action pending or threatened in writing to which a Lucky Indemnified Party is a party (and in respect of which indemnification could be sought by such Lucky Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Lucky Indemnified Party from all liability arising out of such Legal Action.
(c) The Buyer shall, and shall cause each Acquired Company to, jointly and severally, maintain in effect for at least six (6) years after the Closing Date the current policies of the directors’ and officers’ liability insurance or policies maintained by the Seller with respect to the Acquired Companies 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 Closing Date (including in connection with the negotiation and execution of this Agreement and the consummation of the Stock Purchase) so long as the Buyer and the Acquired Companies are not required to pay an annual premium in excess of 200% of the last annual premium paid for such insurance before the date of this Agreement (such 200% amount being the “Maximum Premium”); provided, that such coverage shall not require a total limit of liability in excess of $50,000,000 or dedicated Side-A (Non-Indemnifiable Loss only) insurance coverage. If the Buyer and the Acquired Companies are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, then the Buyer shall, and shall cause each Acquired Company to, 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 7.6(c), before or on the Closing Date, the Buyer shall be entitled to purchase a non-rescindable “tail” directors’ and officers’ liability insurance policy covering the matters described in this Section 7.6(c) and, if the Buyer elects to purchase such a policy before or on the Closing Date, the Buyer’s obligations under this Section 7.6(c) shall be satisfied so long as the Buyer and the Acquired Companies cause such policy to be maintained in effect for a period of six (6) years following the Closing Date. The Seller shall maintain in effect for at least six (6) years after the Closing DateDate the directors and officers liability insurance coverage currently maintained by the Seller with respect to any insureds other than the Acquired Companies with at least the same coverage and amounts and containing terms and conditions that are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Closing Date (including in connection with the negotiation and execution of this Agreement and the consummation of the Stock Purchase); provided, that such coverage shall not require a total limit of liability in excess of $50,000,000 or dedicated Side-A (Non-Indemnifiable Loss only) insurance coverage. Notwithstanding anything to the contrary in this Section 7.6(c), in no event shall the Buyer shall cause or, after the Closing, the Acquired Companies be required to be maintained in effect maintain directors’ and officers’ liability insurance or policies which in the aggregate cost in excess of $500,000.
(d) The Buyer hereby acknowledges that the Lucky Indemnified Parties may have certain rights to a minimum limit indemnification, advancement of US$50 million expenses and/or insurance provided by other Persons. The Buyer hereby agrees that with respect to claims arising the indemnification obligations in this Section 7.6 (i) from or related to facts or events that occurred at or before and after the Closing, to the extent relating to the Business, the Buyer and the Acquired Companies shall be the indemnitor of first resort (i.e., their obligations to the Lucky Indemnified Parties are primary and any obligation of such other Persons to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Lucky Indemnified Party are secondary), (ii) from and after the Closing, to the extent relating to the Business, the Buyer and the Acquired Companies shall be required to advance the full amount of expenses incurred by any such Lucky Indemnified Party and shall be liable for the full indemnifiable amounts, without regard to any rights any such Lucky Indemnified Party may have against any such other Person and (iii) the Buyer irrevocably waives, relinquishes and releases, and from and after the Closing, the Buyer shall cause each Acquired Company to, waive, relinquish and release such other Persons from any and all claims against any such other Persons for contribution, subrogation or any other recovery of any kind in respect thereof. The Buyer further agrees that no advancement or payment by any of such other Persons on behalf of any such Lucky Indemnified Party with respect to any claim for which such Lucky Indemnified Party has sought indemnification from the Buyer or the Acquired Companies shall affect the foregoing and, to the extent permitted hereunder, such other Persons shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Party against the Buyer and the Acquired Companies.
(ce) The covenants contained in this Section 7.6 are intended to be for the benefit of, and shall be enforceable by, each of the Lucky Indemnified Parties and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Lucky Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(f) In the event that, after that the Closing DateBuyer and following the Closing, the Company or Buyer or any of their respective Subsidiaries Acquired Companies, or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions the Buyer shall, and shall be made cause each Acquired Company to, take all necessary action so that the successors and or assigns of the Company, its Subsidiaries or BuyerBuyer and the Acquired Companies, as the case may be, shall assume succeed to the obligations set forth in this Section 5.47.6.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fifth & Pacific Companies, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the extent required by law (i) Buyer will not take any action (including Signing Date or who becomes prior to the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify Acquisition Closing an officer or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, each an “Indemnified Party” and, collectively, the “Indemnified PartiesPerson”) contained as provided in the Organizational Documents certificate of incorporation (including any certificate of designations) or by-laws of the Company, its Subsidiaries or in each case as in effect on the Ilijan EntitiesSigning Date, or pursuant to any other contracts in effect on the terms of any indemnification agreementsSigning Date, in such a manner as would adversely affect shall survive the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, Acquisition Closing and shall cause the Company remain in full force and its Subsidiaries to honoreffect in accordance with their terms, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of any indemnification agreementssuch proceeding or claim.
(b) For six (6) years after the Acquisition Closing, to the fullest extent permitted under applicable law, the Buyer and the Company (the “Indemnifying Persons”) shall indemnify, defend, and hold harmless each Indemnified Person against all losses, claims, damages, liabilities, fees, expenses, judgments, and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Acquisition Closing (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments, and fines as such expenses are incurred, subject to the Company’s receipt of an undertaking by such Indemnified Person to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified under applicable Legal Requirements; provided, however, that the Buyer and the Company will not be liable for any settlement effected without the Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed).
(c) The Company shall, and the Buyer shall cause the Company to: (i) maintain in effect for a period of six (6) years after the Closing DateAcquisition Closing, Buyer shall cause to be maintained in effect if available, the current policies of directors’ and officers’ liability insurance maintained by the Company immediately prior to the Acquisition Closing (provided, that the Company may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company when compared to the insurance maintained by the Company as of the Signing Date); or (ii) obtain as of the Acquisition Closing “tail” insurance policies with a minimum limit claims period of US$50 million six (6) years from the Acquisition Closing with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company, in each case with respect to claims arising from out of or related relating to facts events which occurred before or events at the Acquisition Closing (including in connection with the transactions contemplated by this Agreement); provided, however, that occurred in no event will the Buyer or the Company be required to expend an annual premium for such coverage in excess of 200 percent of the last annual premium paid by the Company for such insurance prior to the Signing Date, which amount is determined in accordance with Schedule 9.8 (the “Maximum Premium”). If such insurance coverage cannot be obtained at an annual premium equal to or before less than the ClosingMaximum Premium, the Company will obtain, and Buyer will cause the Company to obtain, that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium.
(cd) The obligations of the Buyer and the Company under this Section 9.8 shall survive the consummation of the Acquisition and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 9.8 applies without the consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 9.8 applies shall be third party beneficiaries of this Section 9.8, each of whom may enforce the provisions of this Section 9.8).
(e) In the event that, after the Closing DateBuyer, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns assigns: (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger merger; or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, proper provisions provision shall be made so that the successors and assigns of the Buyer or the Company, its Subsidiaries or Buyer, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(d) 9.8. The provisions agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Person is entitled, whether pursuant to applicable Legal Requirements, Contract, or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors, and employees, it being understood and agreed that the indemnification provided for in this Section 5.4 are intended to be for the benefit of9.8 is not prior to, and shall be enforceable byor in substitution for, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesany such claims under any such policies.
Appears in 1 contract
Samples: Development, Option and Stock Purchase Agreement (Fortress Biotech, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except For six years after the Effective Time, Parent and the Surviving Corporation will indemnify, defend and hold harmless each person who is now, or has been at any time prior to the extent required by law (i) Buyer will not take any action (including date hereof or who becomes prior to the exercise Effective Time, an officer or director of voting rights in connection with the Ilijan Entities) so as to amend, modify Company or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries or an employee of Company or any of its Subsidiaries who acts as a fiduciary under any Company Employee Benefit Plans (each, together with such person’s heirs, executors or administrators, each an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained against all losses, claims, damages, liabilities, fees and expenses (including fees and disbursements of counsel and experts and judgments, fines, losses, claims, liabilities and amounts paid in the Organizational Documents of the Companysettlement (provided, its Subsidiaries or the Ilijan Entities, or the terms of that any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without settlement is effected with the prior written consent of each affected Parent, which will not be unreasonably withheld)) arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time to the full extent permitted under Delaware law or Parent’s certificate of incorporation and bylaws and Company’s written indemnification agreements in effect on the date hereof; provided, that if any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims will continue until disposition of any and all such claims; and provided, further, that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under Delaware law, Parent’s certificate of incorporation or bylaws or such agreements, as the case may be, will be made by independent counsel mutually acceptable to Parent and the Indemnified Party; and provided, further, that nothing herein will impair any rights or obligations of any Indemnified Party. If any claim or claims are brought against any Indemnified Party (ii) Buyer shall honorwhether arising before or after the Effective Time), and shall cause such Indemnified Party may select counsel for the defense of such claim, which counsel will be reasonably acceptable to Company and its Subsidiaries to honor, and, (if selected prior to the extent reasonably possible, shall exercise Effective Time) and Parent (if selected after the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsEffective Time).
(b) For a period Parent shall promptly advance all reasonable out-of-pocket expenses of six (6) years after each Indemnified Party in connection with any such action or proceeding described above, as such expenses are incurred, to the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before fullest extent permitted by the ClosingDGCL.
(c) In the event that, after the Closing DateNotwithstanding any other provisions hereof, the Company or Buyer obligations of Parent contained in this Section 7.3 will be binding upon Parent’s successors and assigns. If Parent or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger Person or (ii) transfers all or a substantial portion substantially all of its properties and or assets to any personPerson, then, and in either such each case, proper provisions shall provision will be made so that the successors and assigns of Parent honor the Company, its Subsidiaries or Buyer, as the case may be, shall assume the indemnification obligations set forth in this Section 5.47.3.
(d) Parent’s and the Surviving Corporation’s obligations under this Section 7.3 will survive the consummation of the Merger and will not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.3 applies without the consent of such affected Indemnified Party. The Indemnified Parties are third party beneficiaries of this Section 7.3, each of whom may enforce the provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives7.3.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except In the event of any threatened or actual Proceeding, in which any Person who is now, or has been at any time prior to the Closing, a manager, director, officer or Affiliate of the Company or any of its Subsidiaries (the “Company Indemnified Persons”) is, or is threatened to be, made a Party thereto based in whole or in part on the fact that such Person is or was a manager, director, officer or Affiliate of the Company or any of its Subsidiaries, whether in any case asserted or arising before, on or after the Closing, the Company and its Subsidiaries shall, to the fullest extent required permitted by law (i) Buyer will not take Law, indemnify and hold harmless such Company Indemnified Persons from and against any action and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses in advance of the exercise final disposition of voting rights any Proceeding to each Company Indemnified Persons to the fullest extent permitted by Law), judgments, fines and amounts paid in settlement incurred in connection with or arising out of such Proceeding.
(b) Company Indemnified Persons shall notify the Ilijan Entities) Company of the existence of a Proceeding for which such Company Indemnified Persons is entitled to indemnification hereunder as promptly as reasonably practicable after such Company Indemnified Person learns of such Proceeding; provided, that the failure to so as to amend, modify or repeal notify shall not affect the provisions for indemnification of any present and former employee, agent, director or officer obligations of the Company and its Subsidiaries (eachunder this Section 12.15 except to the extent such failure to notify actually prejudices the Company and its Subsidiaries. The Company, together with such person’s heirsat its expense, executors or administrators, an “Indemnified Party” and, collectively, shall have the “Indemnified Parties”) contained in right to control the Organizational Documents defense of the Company, its Subsidiaries or Proceeding with counsel selected by the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior Company and reasonably acceptable to the Closing, without the prior written consent of each affected Company Indemnified Party, Person. The Company Indemnified Person and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to shall cooperate fully with each other in connection with the extent reasonably possible, shall exercise the voting, governance and contractual powers available to defense of any Proceeding. No settlement of a Proceeding may be made by the Company or any Subsidiary without the Company Indemnified Person’s consent, except for a settlement which requires no more than a monetary payment for which the Company Indemnified Person is fully indemnified and its Subsidiaries to cause which does not require the Ilijan Entities to honoradmission of liability. No settlement of a Proceeding may be made by a Company Indemnified Person without the consent of the Company, unless such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsconsent is unreasonably withheld, delayed or conditioned.
(bc) For Seller shall purchase a so-called “tail” for directors’ and officers’ liability insurance, in each case covering Persons who are currently covered by such insurance on terms no less favorable than those in effect on the date hereof for a period of at least six (6) years after the Closing DateClosing, Buyer shall cause and if the premium for such insurance is not paid prior to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any full amount of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions premium shall be made so that the successors and assigns paid out of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Purchase Price amount payable at Closing.
(d) The provisions of this Section 5.4 12.15 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellerseach Company Indemnified Person and such Company Indemnified Person’s estate, each Indemnified Party, his or her heirs, executors or administrators heirs and his or her other representatives.
(e) The obligations of the Company and its Subsidiaries under this Section 12.15 shall continue in full force and effect for a period commencing as of the Closing and ending as of the later of (i) the six (6) year anniversary of the Closing and (ii) the date that all applicable statute of limitation periods have expired for any claim or claims for which a Company Indemnified Person may be entitled to indemnification under this Section 12.15; provided, that all rights to indemnification in respect of any claim for indemnification under this Section 12.15 asserted or made within such period shall continue until the final disposition of such claim. Notwithstanding anything in this Agreement to the contrary, the obligation of the Company and its Subsidiaries to indemnify the Company Indemnified Persons will be limited by and to the directors’ and officers’ liability insurance coverage maintained pursuant to Section 12.15(c).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to From and after the extent required by law (i) Buyer will not take any action (including Effective Time, the exercise Surviving Company shall indemnify and hold harmless, and provide advancement of voting rights in connection with the Ilijan Entities) so as to amendexpenses to, modify or repeal the provisions for indemnification all past and present directors and officers of any present GFI and former employee, agent, anyone who becomes a director or officer of GFI during the Company and its Subsidiaries period from the date of this Agreement through the Closing Date (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, in all of their capacities) (the “Indemnified PartiesPersons”) contained for all acts and omissions occurring at or prior to the Effective Time to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by GFI pursuant to GFI’s Constituent Documents and indemnification agreements, if any, in existence on the Organizational date hereof with any Indemnified Persons. CME shall cause the Constituent Documents of the CompanySurviving Corporation and the Surviving Company to contain provisions with respect to indemnification, its Subsidiaries advancement of expenses and limitation of director and officer liability that are no less favorable to the Indemnified Persons with respect to acts or omission occurring at or prior to the Ilijan EntitiesEffective Time than those set forth in the Constituent Documents of GFI as of the date of this Agreement, which provisions thereafter shall not be amended, repealed or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to Persons. From and after the ClosingEffective Time, without the prior written consent of each affected Indemnified Party, CME shall guarantee and (ii) Buyer shall honorstand surety for, and shall cause the Surviving Company and its Subsidiaries to honor, andin accordance with their respective terms, to each of the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification covenants contained in the Organizational Documents and terms of any indemnification agreementsthis Section 6.8.
(b) For a period of six (6) years after Prior to the Closing Date, Buyer GFI shall, or if GFI is unable to, CME shall cause to be maintained in effect the Surviving Company as of or following the Effective Time to, purchase a six year prepaid “tail” policy on the current policies of directors’ and officers’, employed lawyers’ liability insurance to a minimum limit of US$50 million and fiduciary liability insurance maintained by GFI with respect to claims arising from or related to facts or events that occurred at on or before the ClosingEffective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions) (“D & O Insurance”); provided that GFI shall not pay, and the Surviving Company shall not be required to pay, for such “tail” policy more than 300% of the current annual premium paid by GFI for such D & O Insurance. If such D & O Insurance has been obtained by GFI prior to the Effective Time, CME shall cause such D & O Insurance to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Company. If GFI or the Surviving Company shall for any reason fail to obtain such “tail” policy, the Surviving Company or CME shall maintain for a period of six years after the Effective Time such D & O Insurance (provided that the Surviving Company or CME (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured); provided that in no event shall the Surviving Company or CME be required to pay in any one year more than 300% of the current annual premium paid by GFI for such D & O Insurance; provided, further, that if the annual premiums of such D & O Insurance exceed such amount, the Surviving Company or CME shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) In the event that, after the Closing DateIf CME, the Surviving Company or Buyer or any of its or their respective Subsidiaries or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or other entity of such consolidation or merger or (ii) transfers shall transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions shall be made so that the successors and assigns of CME or the Surviving Company, its Subsidiaries or Buyer, as the case may be, shall assume all of the obligations set forth in this Section 5.46.8.
(d) The provisions obligations of CME, the Surviving Company and any successors thereto under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 6.8 applies without the consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 6.8 applies shall be third party beneficiaries of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.6.8)
Appears in 1 contract
Samples: Merger Agreement (Cme Group Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the earlier of the Acceptance Date or the Effective Time, Parent shall cause the certificate of incorporation and bylaws of the Company and the Surviving Corporation to contain provisions with respect to indemnification, advancement of expenses and exculpation not less favorable than those set forth in the certificate of incorporation and bylaws of the Company as of the date hereof, which provisions shall not be, for a period of six (6) years from the Effective Time (or until such later date as any claims then still pending shall have been resolved) amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of individuals who at or prior to the extent required by law Effective Time were directors or officers of the Company or any of its Subsidiaries. Until the six (6) year anniversary of the Effective Time (or until such later date as any claims then still pending shall have been resolved), Parent shall, and shall cause the Company and the Surviving Corporation to, honor and fulfill in all respects the obligations of (i) Buyer will not take any action the Company and the Surviving Corporation under their respective certificates of incorporation and bylaws and (including ii) the exercise of voting rights in connection Company pursuant to indemnification agreements with the Ilijan EntitiesCompany’s directors, officers, employees or agents existing at or prior to the Effective Time to the fullest extent permitted by applicable Law.
(b) so The Company shall, to the fullest extent permitted under applicable Law, indemnify, defend and hold harmless, and, from and after the earlier of the Acceptance Date or the Effective Time, the Company and the Surviving Corporation shall, and Parent shall cause the Company or the Surviving Corporation (as applicable) to, indemnify, defend and hold harmless, to amendthe fullest extent permitted under applicable Law, modify or repeal the provisions for indemnification of any each present and former employee, agent, director or officer of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained against any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Action, investigation or inquiry, whether civil, criminal, administrative or investigative, arising out of or pertaining to (x) the fact that the Indemnified Party is or was an officer, director, employee, agent or other fiduciary of the Company or any Subsidiary of the Company or (y) any act or omission by an Indemnified Party in the Organizational Documents Indemnified Party’s capacity as a director, officer, employee or agent of the Company, Company or any of its Subsidiaries or taken at the Ilijan Entitiesrequest of the Company or any of its Subsidiaries (including in connection with serving at the request of the Company or any of its Subsidiaries as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)) or (z) this Agreement or the terms transactions contemplated by this Agreement, whether in any case asserted or arising before or after the Closing Date. Without limiting the generality of the foregoing, if any Indemnified Party becomes involved in any actual or threatened Action, investigation or inquiry with respect to which such Indemnified Party is seeking indemnification pursuant to this Section 7.5, the Company or the Surviving Corporation (as applicable) shall, and Parent shall cause the Company or the Surviving Corporation (as applicable) to, to the fullest extent permitted by Law, promptly (and in any event no later than twenty (20) days following any request therefor) advance to such Indemnified Party his or her reasonable legal expenses (including the reasonable cost of any indemnification agreementsinvestigation and preparation incurred in connection therewith); provided that any person to whom expenses are advanced provides an undertaking, in to the extent then required by the DGCL, to repay such a manner as would adversely affect advances if it is finally judicially determined that such person is not entitled to indemnification.
(c) Parent shall be entitled (but shall not be obligated) to control the rights defense of any such Action, investigation or inquiry with counsel of its own choosing reasonably acceptable to the Indemnified Parties Party. Parent, the Company and the Surviving Corporation shall not be liable for any settlement effected without Parent’s written consent (not to be indemnified unreasonably withheld, conditioned or delayed). Parent, the Company and the Surviving Corporation shall cooperate with an Indemnified Party in respect the defense of their serving any matter for which such Indemnified Party is seeking indemnification hereunder. The Indemnified Party shall cooperate with Parent, the Company and the Surviving Corporation in the defense of any matter for which such capacities prior to Indemnified Party is seeking indemnification hereunder. Neither Parent nor the ClosingSurviving Corporation shall settle any such Action, investigation or inquiry without the prior written consent of each affected the Indemnified PartyParty (not to be unreasonably withheld, conditioned or delayed) unless such settlement (i) includes an unconditional release of the Indemnified Party and (ii) Buyer includes only the payment of money.
(d) Parent shall honorprovide and maintain in effect, and or shall cause the Surviving Corporation to provide and maintain in effect, for an aggregate period of not less than six (6) years from the Effective Time, for the benefit of the current and former directors and officers of the Company and its Subsidiaries to honor, and, an insurance and indemnification policy that provides coverage for acts or omissions occurring at or prior to the extent reasonably possibleEffective Time (including, without limitation, for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) (the “D&O Insurance”) that is at least as favorable (with respect to coverage, amounts, limits, deductibles and conditions) as the Company’s existing policy; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 250% of the annual premium currently paid by the Company for such coverage (the “Company’s Current Premium”). If such premiums for such insurance would at any time exceed 250% of the Company’s Current Premium, then Parent shall maintain the maximum amount of coverage under a policy having the same deductible as is available for such 250% of the Company’s Current Premium. The Company represents and warrants to Parent that the Company’s Current Premium is as set forth on Section 7.5(d) or the Company Disclosure Schedule. Notwithstanding the foregoing, Parent shall use its reasonable best efforts to cause coverage to be extended under the Company’s D&O Insurance by obtaining a six-year “tail” policy, provided that the cost of such tail coverage does not exceed the amount as set forth on Section 7.5(d) of the Company Disclosure Schedule. If Parent is unable to obtain such tail policy, Parent shall provide the Company with notice thereof at least five business days prior to the earlier of the Acceptance Date and the Closing. If the Company receives such notice from Parent, the Company may purchase such tail policy, provided that the cost of such tail coverage does not exceed the amount as set forth on Section 7.5(d) of the Company Disclosure Schedule. Such tail policy, whether purchased by Parent or the Company, shall exercise satisfy Parent’s and the votingSurviving Corporation’s obligations under this Section 7.5(d). Nothing in this Agreement is intended to, governance and contractual powers available shall be construed to the Company and its Subsidiaries or shall release, waive or impair any rights to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million claims under any policy that is or has been in existence with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer any of its Subsidiaries or any of their officers or directors, it being understood and agreed that the indemnification provided for in this Section 7.5 is not in substitution for any such claims under such policies.
(e) This Section 7.5 shall survive the consummation of the Merger at the Effective Time, is intended to benefit and provide third party rights to the Indemnified Parties, shall be binding on Parent and the Surviving Corporation and their successors and assigns and shall be enforceable by the Indemnified Parties and their respective Subsidiaries heirs and representatives. In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall expressly assume and succeed to the obligations set forth in this Section 5.47.5.
(df) The provisions If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.4 are intended to be for 7.5 that is denied by Parent and/or the benefit ofCompany or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Parent, the Company or the Surviving Corporation shall be enforceable by, in addition to Sellers, each pay the Indemnified Party’s costs and expenses, his or her heirsincluding reasonable legal fees and expenses, executors or administrators and his or her other representativesincurred by the Indemnified Party in connection with pursuing its claims.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to Without limiting any additional rights that any employee, officer or director may have under any agreement or Benefit Plan or under the extent required by law Company's charter or bylaws, after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present (ias of the Effective Time) Buyer will not take and former officer or director of the Company or any action of its Subsidiaries (the "INDEMNIFIED DIRECTORS AND OFFICERS"), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including the exercise of voting rights attorneys' fees and disbursements (collectively, "COSTS") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of actions taken by them in their capacity as officers or directors at or prior to the Ilijan Entities) so as Effective Time (including this Agreement and the Transactions), or taken by them at the request of the Company or any Subsidiary of the Company, whether asserted or claimed prior to, at or after the Effective Time, to amend, modify or repeal the provisions fullest extent permitted under applicable Law for indemnification a period of six years from the Effective Time. Each Indemnified Director and Officer shall be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation within ten Business Days of receipt by the Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification. The Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Director or Officer hereunder), without the consent of such Indemnified Director or Officer, which consent shall not be unreasonably withheld or delayed, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Director or Officer from all liability arising out of such action, suit, proceeding, investigation or claim.
(b) The charter and bylaws of the Surviving Corporation shall continue to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and former employee, agent, director or officer officers than are presently set forth in the charter and bylaws of the Company and its Subsidiaries (eachSubsidiaries, together with such person’s heirswhich provisions shall not be amended, executors repealed or administrators, an “Indemnified Party” and, collectively, otherwise modified for a period of six years from the “Indemnified Parties”) contained Effective Time in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities individuals.
(c) On or prior to the Closingdate of this Agreement, without the prior written consent Company has received confirmation notices with respect to offers, on the terms and conditions set forth on SECTION 6.19(C) of each affected the Company Disclosure Schedule, which the Company believes to be binding on the insurance carriers, subject to the absence of a material change in this Agreement and to the consummation of the Offer (the "BINDER"), for "run-off" insurance policies for directors' and officers' liability insurance, plan purchaser protection, employee practices and fiduciary liability coverage (which shall provide for the Side A, B and C coverage for Indemnified PartyDirectors and Officers), on terms and conditions that have been made available to Parent and Acquisition Corp., with a claims period of at least six years from the Offer Payment Date with respect to directors' and officers' liability insurance, employee practices and fiduciary liability coverage, and with a claims period of at least three years from the Offer Payment Date with respect to plan purchaser protection from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to all such coverage in an amount and scope at least as favorable as the Company's existing policies with respect to matters existing or occurring at or prior to the Offer Payment Date (the "RUN-OFF POLICY"). Prior to the earlier of (i) the Offer Payment Date or (ii) Buyer the date such Run-Off Policy is cancelled due to non-payment, the Company shall honorobtain and fully pay for the Run-Off Policy. Parent shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by the Company and its Subsidiaries to honor, and, to or any Company Subsidiary set forth in SECTION 6.19(C) of the extent reasonably possible, shall exercise Company Disclosure Schedule. In the voting, governance and contractual powers event that the carriers do not make the Run-Off Policy available to the Company for any reason other than a breach of this Agreement by the Company and its Subsidiaries Acquisition Corp. acquires shares of Common Stock on the Offer Payment Date pursuant to the Offer, the Company shall endeavor to (and if the Company is unable to, Parent shall cause the Ilijan Entities Surviving Corporation to honor(after the Offer Payment Date) obtain and fully pay (up to a maximum cost of 300% of the current annual premium paid by the Company for its existing coverage for directors' and officers' liability insurance, such provisions for indemnification contained plan purchaser protection, employee practices and fiduciary liability coverage in the Organizational Documents aggregate (the "MAXIMUM AMOUNT")) for "tail" insurance policies (which shall provide for the Side A, B and terms of any indemnification agreements.
(bC coverage for Indemnified Directors and Officers where the existing policies also include coverage for the Company) For with a claims period of at least six years from the Offer Payment Date for directors' and officers' liability insurance, plan purchaser protection, employee practices and fiduciary liability coverage and three years from the Offer Payment Date for plan purchaser protection, from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to all such coverage in an amount and scope at least as favorable as the Company's existing policies with respect to matters existing or occurring at or prior to the Offer Payment Date. Notwithstanding the foregoing, after the Offer Payment Date, if the amount of the annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Company or the Surviving Corporation shall maintain or procure, for such six (6) years after the Closing Dateyear period or three (3) year period, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Dateas appropriate, the Company or Buyer or any most advantageous policy of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be insurance for the benefit of, Indemnified Directors and shall be enforceable by, in addition Officers obtainable for an annual premium equal to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesthe Maximum Amount.
Appears in 1 contract
Samples: Acquisition Agreement (Prentice Capital Management, LP)
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, Parent shall cause the Surviving Corporation and the applicable subsidiaries of the Surviving Corporation to assume all obligations of the Company and its subsidiaries in respect of exculpation, indemnification and advancement of expenses for each individual who at the Effective Time is, or at any time prior to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendEffective Time was, modify or repeal the provisions for indemnification of any present and former employee, agent, a director or officer of the Company and its Subsidiaries or any subsidiary of the Company (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and”), collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries for acts or the Ilijan Entities, omissions occurring at or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained Effective Time as provided in the Organizational Documents Company’s Certificate of Incorporation and terms Bylaws as in effect on the date of any indemnification agreements.
(b) this Agreement. For a period of six (6) years from the Effective Time, the Surviving Corporation shall maintain, and Parent shall cause the Surviving Corporation to maintain, provisions of the Surviving Corporation’s certificate of incorporation and bylaws with respect to limitation of liabilities of directors and indemnification and advancement of expenses of officers and directors of the Company that are no less favorable to the Indemnified Parties than are set forth in the Company’s Certificate of Incorporation and Bylaws as in effect on the date of this Agreement, and shall not prior to the expiration of such period amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any Indemnified Party; provided, however, that all rights to indemnification in respect of any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”) made within such six (6) year period shall continue until the disposition or resolution of such Proceeding in accordance with the Surviving Corporation’s certificate of incorporation and bylaws. Anything to the contrary in this Section 6.10 notwithstanding, any Person to whom an advancement of expenses is provided in connection with a Proceeding shall be required to provide, as a condition to such advancement, an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification in connection with such Proceeding. In the event of any such Proceeding (x) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Proceeding in which indemnification could be sought by such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise consents (which consent shall not be unreasonably withheld, conditioned or delayed) in writing to such settlement, compromise or consent, and (y) the Surviving Corporation shall reasonably cooperate in the defense of any such matter. In the event any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party under this Section 6.10, (i) the Surviving Corporation or Parent shall have the right, but not the obligation, to control the defense thereof after the Closing DateEffective Time, Buyer (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Surviving Corporation shall elect to control the defense of any such Proceeding, (iii) the Surviving Corporation shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Party reasonably promptly after statements therefor are received by the Surviving Corporation, whether or not the Surviving Corporation shall elect to control the defense of any such Proceeding, and (iv) no Indemnified Party shall be liable for any settlement effected without his or her prior express written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(b) Any Indemnified Party wishing to claim indemnification under Section 6.10, upon learning of any such Proceeding, shall promptly notify the Surviving Corporation thereof in writing, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the Surviving Corporation.
(c) Parent shall maintain, or shall cause the Surviving Corporation to be maintained maintain, at no expense to the beneficiaries, in effect for a period of six (6) years from the Effective Time either (i) the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company as disclosed on Schedule 6.10 of the Company Disclosure Schedule with respect to matters existing or occurring on or prior to the Effective Time or (ii) any other policies of directors’ and officers’ liability insurance and fiduciary liability insurance on terms and conditions providing benefits that are no less favorable (other than in any de minimis respect) as such policies of the Company disclosed on Schedule 6.10 of the Company Disclosure Schedule with respect to matters existing or occurring on or prior to the Effective Time; provided, however, that after the Effective Time, Parent and the Surviving Corporation shall not be required to pay in the aggregate for such coverage under each such policy more than 250% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant hereto under each such policy, but in such case shall purchase as much coverage as reasonably practicable for such amount. At Parent’s option, Parent may, in lieu of maintaining or causing the Surviving Corporation to maintain the coverage provided in the immediately preceding sentence, direct the Company to purchase a minimum limit six-year (6) prepaid “tail policy” to incept at the Effective Time at a cost not exceeding 250% of US$50 million the last annual premium paid by the Company prior to the date hereof in respect of the current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company as of the date hereof disclosed on Schedule 6.10 of the Company Disclosure Schedule on terms and conditions providing substantially equivalent benefits as such current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company with respect to claims arising from or related to facts or events that occurred at or before the ClosingEffective Time, including the transactions contemplated hereby. In the event Parent elects to purchase such a “tail policy” in accordance with this Section 6.10(c) prior to the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail policy” in full force and effect for such six (6)-year period. Parent agrees to cause the Surviving Corporation to honor and perform all indemnification agreements entered into by the Company or any of its subsidiaries with any Indemnified Party on the terms and conditions set forth therein and solely to the extent disclosed on Schedule 6.10 of the Company Disclosure Schedule.
(cd) In If Parent or the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or a substantial portion substantially all of its properties and assets to any personindividual, corporation or other entity, then, and in either each such case, proper provisions shall be made so that the successors and assigns of Parent or the Company, its Subsidiaries or Buyer, as the case may be, Surviving Corporation shall assume all of the obligations set forth in this Section 5.46.10.
(de) The provisions of this Section 5.4 6.10 shall survive the Merger and, following the Effective Time, are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and representatives.
(f) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to Sellersany rights such Indemnified Parties may have under the Certificate of Incorporation or Bylaws of the Company or the comparable governing instruments of any of its subsidiaries, each Indemnified Partyor under any indemnification Contracts or applicable Laws. Nothing in this Agreement is intended to, his shall be construed to or her heirsshall release, executors waive or administrators impair any rights to directors’ and his officers’ insurance claims under any policy that is or her other representativeshas been in existence with respect to the Company or its officers, directors and employees, it being understood that the indemnification provided for in this Section 6.10 is not prior to, or in substitution for, any such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except All rights to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights indemnification now existing in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and former employee, agent, director or officer of RTMRG or any of its Subsidiaries (the Company "D&O INDEMNIFIED PARTIES") as provided in the articles of incorporation and bylaws (or similar organizational instruments) of RTMRG or its Subsidiaries, in agreements between a D&O Indemnified Party and RTMRG or one of its Subsidiaries, or otherwise in effect on the date of this Agreement shall, in each case, survive the Mergers and the consummation of the other transactions contemplated hereby and shall continue in full force and effect for a period of not less than six years after the Closing.
(b) Triarc shall cause the Surviving LLC to indemnify all D&O Indemnified Parties to the fullest extent permitted by applicable Laws with respect to all acts and omissions arising out of or relating to its services as directors or officers of RTMRG or its Subsidiaries occurring prior to the Closing. If any D&O Indemnified Party is or becomes involved in any Legal Action in connection with any matter occurring prior to or at the Closing, Triarc shall cause the Surviving LLC to pay as incurred such D&O Indemnified Party's legal fees, costs and expenses incurred in connection with such Legal Action, subject to Triarc's receipt of an undertaking by or on behalf of such D&O Indemnified Party to repay such legal fees, costs and expenses if it is ultimately determined under applicable Laws that such D&O Indemnified Party is not entitled to be indemnified.
(c) Triarc shall cause the Surviving LLC to obtain, for a period of six years after the Closing, extended reporting or tail coverage on, or a substitute directors' and officers' liability insurance policy for, the directors' and officers' liability insurance policy maintained by RTMRG and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents as of the Company, its Subsidiaries or date hereof for the Ilijan Entities, or the terms benefit of any indemnification agreements, in those persons who are covered by such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities policies immediately prior to the Closing, without in each case, on terms and conditions that are, in the prior written consent of each affected Indemnified Partyaggregate, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, no less favorable to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million insured with respect to claims arising from acts or related omissions arising prior to facts or events that occurred at or before the Closing.
(c) In the event that, after and including the Closing Datethan are currently in effect; PROVIDED, the Company that such extended reporting or Buyer tail coverage or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyersubstitute policy, as the case may be, shall assume can be obtained and maintained on commercially reasonable terms and at a cost to the obligations set forth in this Section 5.4.
(d) The provisions Surviving LLC not greater than 150 percent of this Section 5.4 are intended to be the aggregate annual premium for the benefit ofdirectors' and officers' liability insurance policy maintained by RTMRG on the date hereof. If the Surviving LLC is unable to obtain such coverage or policy for the cost indicated in the preceding sentence, and Triarc shall be enforceable bycause the Surviving LLC to procure the most favorable coverage or policy, in addition to SellersTriarc's reasonable judgment, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesthat the Surviving LLC can reasonably obtain for the cost indicated in the preceding sentence.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. 7.3.1. Holdco agrees that all rights to indemnification, advancement of expenses or exculpation (aincluding all limitations on personal liability) Except existing as of the date of this Agreement in favour of each present and former director, officer or employee of Elan, or Bidder or any of their respective Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Elan or Bidder or any of their respective Subsidiaries is a party in respect of actions or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action Effective Time (including actions or omissions occurring at or prior to the exercise Effective Time arising out of voting rights the transactions contemplated by this Agreement) shall survive the consummation of the Scheme and the Merger; as applicable, and shall continue in connection full force and effect in accordance with their terms. For a period of six (6) years after the Ilijan Entities) so as to amendEffective Time, modify or repeal Holdco shall maintain in effect the provisions for indemnification indemnification, advancement of expenses or exculpation in the Organisational Documents of Elan, Bidder and their respective Subsidiaries or in any agreement to which Elan, Bidder or any of their respective Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of Elan, Bidder or any of their respective Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided, however, that in the event any claim, action, suit proceeding or investigation is pending, asserted or made either prior to the Effective Time or within such six year period, all rights to indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3.1 in respect thereof shall continue until disposition thereof. From and after the Effective Time, Holdco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Elan, Bidder and their respective Subsidiaries to honour, in accordance with their respective terms, each of the covenants contained in this Clause 7.3 without limit as to time.
7.3.2. At and after the Effective Time, Holdco shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former employeedirector, agentofficer or employee of Elan, director Bidder or officer any of their respective Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the Company and its request or for the benefit of Elan, Bidder or any of their respective Subsidiaries (each, together with such person’s heirs, executors his or administratorsher respective heirs and Representatives, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained against all costs and expenses (including advancing attorneys’ fees and expenses in the Organizational Documents advance of the Companyfinal disposition of any actual or threatened claim, its suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any actual or threatened claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in such person’s capacity as a director, officer or employee of Elan, Bidder or any of their respective Subsidiaries or as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the Ilijan Entitiesrequest or for the benefit of Elan, Bidder or the terms any of any indemnification agreementstheir respective Subsidiaries, in such a manner as would adversely affect each case occurring or alleged to have occurred at or before the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities Effective Time (including actions or omissions occurring at or prior to the Closing, without Effective Time arising out of the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementstransactions contemplated by this Agreement).
(b) 7.3.3. For a period of six (6) years after from the Closing DateEffective Time, Buyer Holdco shall cause to be maintained in effect (i) the coverage provided by the policies of directors’ and officers’ liability insurance to a minimum limit and fiduciary liability insurance in effect as of US$50 million the Completion Date maintained by Elan, Bidder and their respective Subsidiaries with respect to claims matters arising from or related to facts or events that occurred at on or before the Closing.
Effective Time (cprovided that Holdco may substitute therefor policies with a carrier with the same or better credit ratings to the existing carrier of at least the same coverage and amounts containing terms and conditions that are no less favourable to the insured) In or (ii) a “tail” policy (which Elan or Bidder may purchase at its option prior to the event Effective Time, and, in such case, Holdco shall cause such policy to be in full force and effect, and shall cause all obligations thereunder to be honoured by Elan or Bidder) under Elan’s or Bidder’s, as applicable, existing directors’ and officers’ insurance policy that covers those persons who are currently covered by Elan’s or Bidder’s, as applicable, directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring at or prior to the Effective Time, which “tail” policy shall be obtained from a carrier with the same or better comparable credit ratings to Elan’s or Bidder’s, as applicable, existing directors’ and officers’ insurance policy carrier and contains terms and conditions that are no less favourable to the insured than those of Elan’s or Bidder’s, as applicable, directors’ and officers’ insurance policy in effect as of the date hereof; provided, however, that, after the Closing DateEffective Time, Holdco shall not be required to pay annual premiums in excess of 300% of the Company last aggregate annual premium paid by Elan, or Buyer Bidder, as applicable, prior to the date hereof in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount.
7.3.4. The rights of each Indemnified Party under this Clause 7.3 shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the Organisational Documents of Elan or any of their respective its Subsidiaries or the Organisational Documents of the Bidder or any of their respective its Subsidiaries, as applicable, any agreement, any insurance policy, the Act, the MBCA (or any other applicable Law) or otherwise. The provisions of this Clause 7.3 shall survive the consummation of the Acquisition and the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the written consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Parties shall be third party beneficiaries of this Clause 7.3 and shall be entitled to enforce the covenants contained in this Clause 7.3). Holdco shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Clause 7.3.
7.3.5. In the event Holdco 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 all or a substantial portion conveys more than 50% of its properties and assets to any personPerson, then, and in either each such case, to the extent necessary, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall Holdco assume the obligations set forth in this Section 5.4Clause 7.3.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Transaction Agreement (Perrigo Co)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent, Merger Sub and the Company agree that all rights to indemnification and all limitations on liability existing in favor of any Indemnitee (as hereinafter defined) as provided in the Company's Certificate of Incorporation, Company's By-laws, charter or By-laws of any Subsidiary of the Company or any Indemnity Agreement (as hereinafter defined) shall survive the Merger and continue in full force and effect to the fullest extent required permitted by law law. To the extent permitted by (i) Buyer will not take the DGCL, or (ii) any action agreement disclosed in Section 6.9 of the Company Disclosure Schedule which provides for indemnification by the Company or any Subsidiary of the Company of any Indemnitee in effect on the date of this Agreement (including any indemnity provisions contained in any agreement disclosed in Section 6.9 of the exercise Company Disclosure Schedule which provides for the registration of voting rights securities) (each, an "Indemnity Agreement"), advancement of Indemnitee Expenses (as hereinafter defined) pursuant to this Section 6.9 shall be mandatory rather than permissive and the Surviving Corporation shall advance Costs (as hereinafter defined) in connection with the Ilijan Entities) so as such indemnification, in all such cases subject to amend, modify or repeal the provisions for indemnification receipt of any present undertaking to repay required by the DGCL. Parent shall cause the Surviving Corporation to expressly assume at Closing and former thereafter honor in accordance with their terms, to the fullest extent permitted under the DGCL, all Indemnity Agreements. With respect to any determination of whether an Indemnitee is entitled to indemnification by the Surviving Corporation under this Section 6.9(a), the Indemnitee shall have the right, as contemplated by the DGCL, to require that such determination be made by special, independent legal counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld), and who has not otherwise performed material services for the Company or for Indemnitee within the last three (3) years. For the purposes of this Section 6.9, (i) "Indemnitee Expenses" shall include reasonable attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigation, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any Indemnifiable Claim (as hereinafter defined), (ii) an "Indemnitee" shall mean any individual who on or prior to the Effective Time was an employee, officer or director of the Company or any of its Subsidiaries, and the heirs, executors, trustees, fiduciaries and administrators of any such employee, officer or director, (iii) "Costs" shall mean all losses, Indemnitee Expenses, claims, damages, liabilities, judgments, or amounts paid in settlement in respect to any Indemnifiable Claim, and (iv) "Indemnifiable Claim" shall mean any actual or alleged act, omission, statement, misstatement, event, or occurrence related to the fact that Indemnitee is or was a director, officer, agent, director employee, or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents fiduciary of the Company, its Subsidiaries or is or was serving at the Ilijan Entitiesrequest of the Company as a director, officer, trustee, agent, employee, or the terms fiduciary of any indemnification agreementsanother corporation, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closingpartnership, without the prior written consent of each affected Indemnified Partyjoint venture, and (ii) Buyer shall honoremployee benefit plan, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.trust,
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Closing, Purchaser agrees that it shall cause the Company Group to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any indemnify and hold harmless each present and former employee, agent, director or and officer of the Company and or any of its Subsidiaries against any costs or expenses (eachincluding reasonable attorneys’ fees), together judgments, fines, losses, claims, damages or liabilities incurred in connection with such person’s heirsany claim, executors action, suit, proceeding or administratorsinvestigation, an “Indemnified Party” andwhether civil, collectivelycriminal, the “Indemnified Parties”) contained in the Organizational Documents administrative or investigative, arising out of the Company, its Subsidiaries or the Ilijan Entities, pertaining to matters existing or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities occurring at or prior to the Closing, without whether asserted or claimed prior to, at or after the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, andClosing, to the fullest extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or BuyerSubsidiaries, as the case may be, shall assume would have been permitted under applicable law, the obligations indemnification agreements set forth on the attached “Indemnification Agreements Schedule” (the “Indemnification Agreements”) and its respective articles of incorporation, bylaws or other organizational documents in effect on the date of this Section 5.4Agreement to indemnify such person (including promptly advancing expenses as incurred to the fullest extent permitted under applicable law). For a period of six years after the Closing, Purchaser shall not, and shall not permit any member of the Company Group to, amend, repeal or modify (in a manner adverse to the beneficiary thereof) any provision in the Indemnification Agreements or in any member of the Company Group’s articles of incorporation, bylaws or other organizational documents relating to the exculpation or indemnification of any officers or directors, it being the intent of the parties hereto that the officers and directors of any member of the Company Group on the date hereof shall continue to be entitled to such exculpation and indemnification to the full extent of the law.
(db) At or prior to the Closing, the Company shall purchase for any Person who is on the date hereof or who becomes prior to the Closing Date, an officer or director of any member of the Company Group (each such Person, a “D&O Beneficiary”) a 6-year “tail” officers’ and directors’ liability insurance coverage (“D&O Insurance”) that is reasonably acceptable to the Sellers’ Representative with respect to all losses, claims, damages, liabilities, costs and expenses (including attorney’s fees and expenses), judgments, fines, losses, and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each a “D&O Claim”) to the extent that any such D&O Claim is based on, or arises out of, (a) the fact that such D&O Beneficiary is or was a director or officer of any member of the Company Group at any time prior to the Closing Date or is or was serving at the request of any member of the Company Group as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at any time prior to the Closing Date or (b) this Agreement or any of the transactions contemplated hereby or thereby in each case to the extent that any such D&O Claim pertains to any matter or fact arising, existing or occurring prior to or at the Closing Date, regardless of whether such D&O Claim is asserted or claimed prior to, at or after the Closing Date. The provisions of this Section 5.4 9.7 are intended to be for the benefit of, and shall be enforceable by, each such D&O Beneficiary and are in addition to, and not in substitution for, any other rights to Sellers, each Indemnified Party, his contribution that any such person may have by contract or her heirs, executors or administrators and his or her other representativesotherwise.
Appears in 1 contract
Samples: Purchase Agreement (Blackbaud Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Acquisition Sub agree that all rights to exculpation, indemnification, contribution and advancement of expenses for facts, events, acts or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including the exercise of voting rights any matters arising in connection with the Ilijan Entitiestransactions contemplated hereby), now existing in favor of the current or former directors, or officers of (or in a comparable role with) so the Company or its Subsidiaries, or any person serving at the request of the Company or any of its Subsidiaries as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, a director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, in a comparable role with) another Person (the “D&O Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer), as the case may be, shall assume survive the Merger and shall continue in full force and effect in accordance with their terms (with respect to the Company’s organizational documents, it being agreed that after the Closing such rights shall be mandatory rather than permissive), and Parent shall and shall cause the Surviving Corporation and its Subsidiaries to perform such obligations thereunder. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, contribution, advancement of expenses and limitation of director or officer (or comparable) liability that are no less favorable to the D&O Indemnified Parties with respect to the period prior to Closing than those set forth in the Company’s and its Subsidiaries’ organizational documents as of the Closing Date, which provisions thereafter shall not, for a period of at least six (6) years from the Effective Time, be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of the D&O Indemnified Parties.
(b) Notwithstanding anything to the contrary contained in this Section 5.45.6(b) or elsewhere in this Agreement, Parent shall not (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Action, unless such settlement, compromise, consent or termination includes an unconditional release of all of the D&O Indemnified Parties covered by the Action from all liability arising out of such Action.
(c) For at least six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its other Subsidiaries to, maintain in full force and effect the coverage provided by the existing directors’ and officers’ liability insurance, employment practices liability insurance and fiduciary liability insurance in effect as of the Closing Date and maintained by the Company or any of its Subsidiaries, as applicable (the “Existing D&O Insurance Policies”), or provide substitute policies (with insurance carriers having an A.M. Best financial strength rating of least an “A”) for the Company and the D&O Indemnified Parties who are currently covered by such Existing D&O Insurance Policies, in either case, with limits and on terms and conditions no less advantageous to the D&O Indemnified Parties than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided that Parent or the Surviving Corporation, as applicable, shall not be required to pay an annual premium for such insurance in excess of three hundred percent (300%) of the aggregate annual premium currently paid by the Company or any of its Subsidiaries for the Existing D&O Insurance Policies (the “Maximum Amount”), but in such case shall purchase as much of such coverage as possible for such amount). In lieu of such insurance, prior to the Effective Time, the Company may purchase prepaid, non-cancellable six (6) year “tail” directors’ and officers’ liability insurance, employment practices liability insurance and fiduciary liability insurance (“Tail Coverage”), effective as of the Effective Time, with limits and on terms and conditions no less advantageous to the D&O Indemnified Parties than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided that the premium for such Tail Coverage shall not exceed the Maximum Amount, and Parent shall cause the Surviving Corporation (or its applicable Subsidiaries) to maintain such Tail Coverage in full force and effect, without any modification, and continue to honor the obligations thereunder, in which event Parent shall cease to have any obligations under the first sentence of this Section 5.6(c)).
(d) From and after the Closing, the D&O Indemnified Parties are third-party beneficiaries of this Section 5.6. The provisions of this Section 5.4 5.6 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each D&O Indemnified Party, his or her heirs, executors or administrators Party and his or her successors, heirs or representatives. Parent and the Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other representativesrights under this Section 5.6 to the same extent and under the same conditions and procedures (and subject to the same conditions, including with respect to the advancement of expenses) (with respect to the Company’s organizational documents, it being agreed that after the Closing such rights shall be mandatory rather than permissive) as such D&O Indemnified Party is entitled on the date of this Agreement under the organizational documents of the Company (or the corresponding organizational documents of any Subsidiary of the Company). The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other applicable rights such D&O Indemnified Party may have under the respective organizational documents of the Company or any of its Subsidiaries or the Surviving Corporation, any other indemnification arrangement, applicable Law or otherwise.
(e) Notwithstanding anything herein to the contrary, if any claim (whether arising before, at or after the Closing) is made against any of the D&O Indemnified Parties on or prior to the sixth (6th) anniversary of the Closing Date, the provisions of this Section 5.6 shall continue in effect until the final disposition of such claim.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent agrees that all rights to the extent required by law (i) Buyer will not take any action (including the exercise exculpation, indemnification and advancement of voting rights in connection with the Ilijan Entities) so as to amend, modify expenses for acts or repeal the provisions for indemnification of any present and former employee, agent, director omissions occurring at or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without whether asserted or claimed prior to, at or after the prior written consent Closing (including any matters arising in connection with the transactions contemplated by this Agreement), existing as of each affected Indemnified Partythe Effective Time in favor of the current or former directors or officers of Parent or the Company in their capacities as such (the “Indemnitees”) as provided in the Parent Certificate of Incorporation, Parent Bylaws, Surviving Corporation Certificate of Incorporation or Surviving Corporation Bylaws (the “Indemnification Provisions”), shall survive the Closing and (ii) Buyer shall honorcontinue in full force and effect in accordance with their terms. Following the Closing, Parent shall, and shall cause the Company to indemnify, defend and its Subsidiaries hold harmless, and advance expenses to, the Indemnitees with respect to honor, andall acts or omissions by them in their capacities as such at any time prior to the Closing, to the fullest extent reasonably possible, shall exercise required by the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsIndemnification Provisions.
(b) For Parent shall provide, for a period of not less than six (6) years after the Closing Date, Buyer shall cause to be maintained in effect the Indemnitees who are insured under the Company’s directors’ and officers’ liability insurance to a minimum limit and indemnification policies in effect as of US$50 million the date hereof (the “Current Company D&O Policies”) with respect to claims arising from or related to facts or events that occurred insurance coverage under renewals of the Current Company D&O Policies at or before prior to the ClosingClosing Date (the “D&O Insurance”) that is no less favorable, in the aggregate, than the Current Company D&O Policies or, if substantially equivalent insurance coverage is unavailable, the best available coverage. Notwithstanding the foregoing, Parent may, in lieu of or in addition to obtaining the D&O Insurance, purchase a six-year “tail” prepaid policy on the Current Company D&O Policies and such tail policy shall satisfy this Section 4.8(b).
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets The Indemnitees to any person, then, and in either such case, proper provisions whom this Section 4.8 applies shall be made so that the successors and assigns third party beneficiaries of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) 4.8. The provisions of this Section 5.4 4.8 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, of each Indemnified Party, his or her heirs, executors or administrators Indemnitee and his or her other successors, heirs or representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to Without limiting any additional rights that any employee, officer or director may have under any employment agreement or Benefit Plan or under the extent required by law Company’s certificate of incorporation or bylaws, after the Effective Time, the Buyer shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present (ias of the Effective Time) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, officer or director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified PartiesDirectors and Officers”) contained ), against all Actions, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including, attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of actions taken by them in their capacity as officers or directors at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), or taken by them at the request of the Company or any of its Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law for a period of six years from the Effective Time. Each Indemnified Director and Officer will be entitled to advancement of expenses incurred in the Organizational Documents defense of any Action from the Surviving Corporation within ten Business Days of receipt by the Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the NJBCA, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. The Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by such Indemnified Director or Officer hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Director or Officer from all liability arising out of such Action or such Indemnified Director or Officer otherwise consents.
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company’s certificate of incorporation and by-laws, its Subsidiaries which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Ilijan Entities, or the terms of Effective Time in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior individuals.
(c) Prior to the ClosingEffective Time, without the prior written consent of each affected Indemnified PartyCompany shall endeavor to (and if it is unable to, and (ii) the Buyer shall honor, and shall cause the Company Surviving Corporation to after the Effective Time) obtain and its Subsidiaries fully pay in one payment (up to honor, and, to a maximum cost of 260% of the extent reasonably possible, shall exercise the voting, governance and contractual powers available to current annual premium paid by the Company and for its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained existing coverage in the Organizational Documents aggregate) for “tail” insurance policies (providing only for the Side A coverage for Indemnified Directors and terms of any indemnification agreements.
(bOfficers where the existing policies also include coverage for the Company) For with a claims period of at least six (6) years after from the Closing Date, Buyer shall cause Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million in an amount and scope at least as favorable as the Company’s existing policies with respect to claims arising from matters existing or related to facts or events that occurred occurring at or before prior to the Closing.
(c) In Effective Time. The Buyer shall, and shall cause the event thatSurviving Corporation to, after the Closing Date, honor and perform under all indemnification agreements entered into by the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations Company Subsidiary set forth in this Section 5.47.11 of the Company Disclosure Schedule.
(d) The Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Closing Date) is made against any Indemnified Director or Officer or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.4 7.11 shall continue in effect until the final disposition of such Action.
(e) The covenants contained in this Section 7.11 are intended to be for the benefit of, and shall be enforceable by, in addition each of the Indemnified Directors and Officers and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to Sellerswhich an Indemnified Director or Officer is entitled, each Indemnified Partywhether pursuant to Law, his contract or her heirs, executors or administrators and his or her other representativesotherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under any and all indemnification agreements in effect immediately prior to the extent required by law (i) Buyer will not take Appointment Time between the Company or any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify its Subsidiaries and any of their respective current or repeal the provisions for indemnification of former directors and officers and any present and former employee, agent, person who becomes a director or officer of the Company and or any of its Subsidiaries prior to the Appointment Time (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”). In addition, for a period of six (6) years following the Effective Time, Parent shall (and shall cause the Surviving Corporation and its Subsidiaries to) cause the certificate of incorporation and bylaws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation provisions contained in the Organizational Documents certificate of the Company, its Subsidiaries incorporation and bylaws (or the Ilijan Entities, or the terms other similar organizational documents) of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, immediately prior to the extent reasonably possibleAppointment Time, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honorduring such six (6) year period, such provisions for indemnification contained shall not be amended, repealed or otherwise modified in the Organizational Documents and terms of any indemnification agreementsrespect, except as required by Legal Requirements.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent and the Surviving Corporation shall cause to be maintained 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 a minimum limit of US$50 million the Appointment Time, covering each person covered by the D&O Insurance immediately prior to the Appointment Time, on terms with respect to claims arising from or related the coverage and amounts that are equivalent to facts or events those of the D&O Insurance; provided, however, that occurred the Surviving Corporation may, at or before the Closing.
its option, (ci) In the event that, after the Closing Datesubstitute therefor policies of Parent, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries containing terms with respect to coverage and amounts that are equivalent to those of the D&O Insurance or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance program (to be effective as of the Effective Time), provided further, however, that in satisfying its obligations under this Section 7.13(b) Parent and the Surviving Corporation shall not be obligated to pay annual premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year (such three hundred percent (300%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be as set forth in Section 7.13 of the Company Disclosure Schedule), provided that 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 Appointment Time, notwithstanding anything to the contrary set forth in this Agreement, the Company may purchase a six-year “tail” prepaid policy on the D&O Insurance on terms and conditions that are equivalent to those of the D&O Insurance. In the event that the Company shall purchase such a “tail” policy prior to the Appointment 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 7.13(b) for so long as such “tail” policy shall be maintained in full force and effect.
(c) If Parent or the Surviving Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Surviving Corporation shall assume all of the obligations of Parent and the Surviving Corporation set forth in this Section 5.47.13.
(d) The provisions of obligations under this Section 5.4 7.13 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 the D&O Insurance or the “tail” policy referred to in Section 7.13(b) 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 D&O Insurance or the “tail” policy referred to in Section 7.13(b) hereof (and their heirs and representatives). Each of the Indemnified Parties or other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 7.13(b) hereof (and their heirs and representatives) are intended to be for third party beneficiaries of this Section 7.13, with full rights of enforcement as if a party thereto. The rights of the benefit ofIndemnified Parties (and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 7.13(b) hereof (and their heirs and representatives)) under this Section 7.13 shall be in addition to, and not in substitution for, any other rights that such 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 the Company or any of its Subsidiaries, or applicable Legal Requirements (whether at law or in equity).
(e) The obligations and liability of Parent, the Surviving Corporation and their respective Subsidiaries under this Section 7.13 shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators joint and his or her other representativesseveral.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the extent required by law (i) Buyer will not take any action (including date hereof or who becomes prior to the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify Effective Time an officer or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, each an “"Indemnified Party” and, collectively, the “Indemnified Parties”") contained as provided in the Organizational Documents Company Charter Documents, in each case as in effect on the date of the Company, its Subsidiaries or the Ilijan Entitiesthis Agreement, or pursuant to any other Contracts in effect on the terms of any indemnification agreementsdate hereof, shall be assumed by the Surviving Corporation in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the ClosingMerger, without further action, at the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, Effective Time and shall cause survive the Company Merger and its Subsidiaries to honorshall remain in full force and effect in accordance with their terms, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of any indemnification agreementssuch proceeding or claim.
(b) For From and after the Effective Time, to the fullest extent permitted under applicable Law, Parent and the Surviving Corporation (the "Indemnifying Parties") shall indemnify, defend and hold harmless each Indemnified Party to the same extent provided in the Charter Documents and all indemnification agreements with Indemnified Parties as in effect on the date of this Agreement, to the extent copies have been provided or made available to Parent prior to the date hereof; provided, however, that the Surviving Corporation will not be liable for any settlement effected without the Surviving Corporation's prior written consent (which consent shall not be unreasonably withheld or delayed).
(c) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) maintain in effect for a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time the current policies of directors’ ' and officers’ ' liability insurance maintained by the Company immediately prior to the Effective Time (provided that the Surviving Corporation may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its Subsidiaries when compared to the insurance maintained by the Company as of the date hereof), or (ii) obtain as of the Effective Time "tail" insurance policies with a minimum limit claims period of US$50 million six (6) years from the Effective Time with coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its Subsidiaries as the coverage, amounts, terms and conditions provided by the Company to its directors and officers as of the date of this Agreement, in each case with respect to claims arising from out of or related relating to facts events which occurred before or events at the Effective Time (including in connection with the transactions contemplated by this Agreement); provided, however, that occurred in no event will the Surviving Corporation be required to expend an annual premium for such coverage in excess of two hundred and fifty percent (250%) of the last annual premium paid by the Company for such insurance prior to the date of this Agreement, which amount is set forth in Section 6.07(c) of the Company Disclosure Letter (the "Maximum Premium"). If such insurance coverage cannot be obtained at an annual premium equal to or before less than the ClosingMaximum Premium, the Surviving Corporation will obtain, and Parent will cause the Surviving Corporation to obtain, that amount of directors' and officers' insurance (or "tail" coverage) obtainable for an annual premium equal to the Maximum Premium.
(cd) The obligations of Parent and the Surviving Corporation under this Section 6.07 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.07 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.07 applies shall be third party beneficiaries of this Section 6.07, each of whom may enforce the provisions of this Section 6.07).
(e) The Surviving Corporation shall pay all expenses, including reasonable attorneys' fees, that may be incurred by the persons referred to in this Section 6.07 in connection with their enforcement of their rights provided in this Section 6.07. In the event that, after the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, unless provided by operation of Law, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may beSurviving Corporation, shall assume all of the obligations set forth in this Section 5.46.07.
(df) The provisions agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 5.4 are intended to be for the benefit of6.07 is not prior to, and shall be enforceable byor in substitution for, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesany such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. 34
7.10.1 1855 Bancorp shall maintain, or shall cause Compass Bank to maintain, in effect for six years from the Effective Time, if available, the current directors' and officers' liability insurance policies maintained by Sandwich (aprovided, that 1855 Bancorp may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) Except with respect to matters occurring prior to the extent Effective Time; provided, however, that in no event shall 1855 Bancorp be required by law (i) Buyer will not take any action (including to expend pursuant to this Section 7.10.1 more than $60,000 in the exercise of voting rights in aggregate. In connection with the Ilijan Entities) so as foregoing, Sandwich agrees to amend, modify provide such insurer or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together substitute insurer with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in representations as such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million insurer may request with respect to claims arising from the reporting of any prior claims.
7.10.2 From and after the Effective Time, 1855 Bancorp shall, or related to facts shall cause Compass Bank to, indemnify, defend and hold harmless each person who is now, or events that occurred who has been at or any time before the Closing.
(c) In date hereof or who becomes before the event thatEffective Time, after an officer or director of Sandwich or the Closing Date, the Company or Buyer or any of their respective Sandwich Subsidiaries or any of their respective subsidiaries (the "Indemnified Parties") against all losses, claims, damages, costs, expenses (including attorney's fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of 1855 Bancorp, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a "Claim"), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of Sandwich or any of its subsidiaries 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 at or after, the Effective Time (the "Indemnified Liabilities"), to the fullest extent permitted under applicable state or federal law in effect as of the date hereof or as amended applicable to a time before the Effective Time and under Sandwich's and Sandwich Bank's Articles of Organization or Charter and By-Laws. 1855 Bancorp shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by applicable state or federal law in effect as of the date hereof or as amended applicable to a time before the Effective Time upon receipt of an undertaking to repay such advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.10.2 upon learning of any Claim, shall notify 1855 Bancorp (but the failure so to notify 1855 Bancorp shall not relieve it from any liability which it may have under this Section 7.10.2, except to the extent such failure materially prejudices 1855 Bancorp) and shall deliver to 1855 Bancorp the undertaking referred to in the previous sentence. In the event of any such Claim (whether arising before or after the Effective Time) (1) 1855 Bancorp shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption 1855 Bancorp shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if 1855 Bancorp 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 1855 Bancorp and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them, and 1855 Bancorp shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) 1855 Bancorp shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be 35
7.10.3 In the event that either 1855 Bancorp or Compass Bank or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving bank or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, 1855 Bancorp shall assume the obligations set forth in this Section 5.47.10.
(d) 7.10.4 The provisions obligations of 1855 Bancorp provided under this Section 5.4 7.10 are intended to be for enforceable against 1855 Bancorp directly by the benefit of, Indemnified Parties and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators binding on all respective successors and his or her other representativespermitted assigns of 1855 Bancorp.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to The Surviving Corporation and its Subsidiaries shall (and Parent shall cause the extent required by law Surviving Corporation and its Subsidiaries to) honor and fulfill the obligations of the Company and its Subsidiaries under (i) Buyer will not take any action indemnification, advancement of expenses and exculpation provision set forth in any certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries as in effect on the date of this Agreement and (including ii) all indemnification agreements between the exercise Company or any of voting rights in connection with the Ilijan Entities) so as to amend, modify its Subsidiaries and any of their respective current or repeal the provisions for indemnification of former directors and officers and any present and former employee, agent, person who becomes a director or officer of the Company and or any of its Subsidiaries prior to the Effective Time (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”). In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) cause the certificate of incorporation and bylaws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, advancement of expenses and indemnification that are at least as favorable to the Indemnified Parties as those contained in the Organizational Documents certificate of the Company, its Subsidiaries incorporation and bylaws (or the Ilijan Entities, or the terms other similar organizational documents) of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honoras in effect on the date hereof, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honorduring such six year period, such provisions for indemnification contained shall not be amended, repealed, or otherwise modified in the Organizational Documents and terms of any indemnification agreementsmanner except as required by applicable Law.
(b) For From the Effective Time until the sixth anniversary of the Effective Time, to the fullest extent the Company would have been permitted to do so under applicable Law (for the avoidance of doubt, subject to the limitations on the Company’s ability to indemnify its directors and officers under Section 145 of the DGCL), Parent shall indemnify and hold harmless each Indemnified Party from and against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with (i) the fact that an Indemnified Party is or was a director or officer of the Company or any of its Subsidiaries, (ii) any acts or omissions occurring or alleged to occur prior to or at the Effective Time in such Indemnified Party’s capacity as a director, officer, employee or agent of the Company or any of its Subsidiaries or other Affiliates, or (iii) the Merger, this Agreement or any of the Transactions; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Party delivers to Parent a written notice asserting a claim for indemnification under this Section 7.06(b), then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent the Company would have been permitted to do so under applicable Law (for the avoidance of doubt, subject to the limitations on the Company’s ability to advance expenses to its directors and officers under Section 145 of the DGCL), Parent shall advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Party therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Party in connection with any such claim, proceeding, investigation or inquiry; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Party delivers to Parent a written notice asserting a claim for advancement under this Section 7.06(b), then the right to advancement asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved.
(c) Prior to the Effective Time, notwithstanding anything to the contrary set forth in this Agreement, the Company may purchase a six year “tail” prepaid policy on the D&O Insurance. In the event that the Company elects to purchase such a “tail” policy prior to the Effective Time, the Surviving Corporation shall (6) years after the Closing Date, Buyer and Parent shall cause the Surviving Corporation to) maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder for so long as such “tail” policy shall be maintained in full force and effect. In the event that the Company does not elect to purchase such a “tail” policy prior to the Effective Time, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”) in respect of acts or omissions occurring at or prior to a minimum limit of US$50 million the Effective Time, covering each person covered by the D&O Insurance, on terms with respect to claims arising from the coverage and amounts that are equivalent to those of the D&O Insurance; provided, however, that the total amount payable for such “tail” insurance policy shall not exceed two hundred and fifty percent (250%) of the premium amount per annum the Company paid in its last full fiscal year as set forth in Section 7.06(c) of the Company Disclosure Schedule (such two hundred and fifty percent (250%) amount, the “Maximum Tail Premium”); provided that, if the cost for such “tail” insurance policy exceeds the Maximum Tail Premium, then the Company or related the Surviving Corporation shall be obligated to facts or events that occurred at or before obtain a substantially similar policy with the Closinggreatest coverage available for a cost not exceeding the Maximum Tail Premium.
(cd) In the event that, after Parent or the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its their respective properties and assets to any personPerson, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.47.06.
(de) The provisions of this Section 5.4 7.06 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, in addition to Sellerseach of the Indemnified Parties and their heirs and legal representatives, each of which shall be a third-party beneficiary of the provisions of this Section 7.06.
(f) The agreements and covenants contained in this Section 7.06 shall not be deemed to be exclusive of any other rights to which any such Indemnified PartyParty is entitled, his whether pursuant to Law, Contract or her heirsotherwise. Nothing in this Agreement is intended to, executors shall be construed to or administrators shall release, waive or impair any rights to directors’ and his officers’ insurance claims under any policy that is or her other representativeshas been in existence with respect to the Company or any of its Subsidiaries or their respective officers, directors and employees.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to For a period of six years after the extent required by law (i) Buyer will not take Effective Time, Investors Bancorp shall indemnify, defend and hold harmless each person who is now, or who has been at any action (including time before the exercise of voting rights in connection with date hereof or who becomes before the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administratorsEffective Time, an “Indemnified Party” and, collectively, officer or director of Brooklyn Bancorp or an Brooklyn Subsidiary (the “Indemnified Parties”) contained against all losses, claims, damages, costs, expenses (including attorney’s fees), liabilities or judgments or amounts that are paid in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without settlement (which settlement shall require the prior written consent of Investors Bancorp, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each affected a “Claim”), in which an Indemnified PartyParty is, or is threatened to be made, a party or witness in whole or in part or arising in whole or in part out of the fact that such person is or was a director, officer or employee of Brooklyn Bancorp or an Brooklyn Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring at or before the Effective Time (including, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time, to the fullest extent as would have been permitted by Brooklyn Bancorp under the applicable Regulations and under Brooklyn Bancorp’s Certificate of Incorporation and Bylaws. Investors Bancorp shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent as would have been permitted by Brooklyn Bancorp under applicable Regulations and under Brooklyn Bancorp’s Certificate of Incorporation and Bylaws, upon receipt of an undertaking to repay such advance payments if he shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 6.09 upon learning of any Claim, shall notify Investors Bancorp (but the failure to so notify Investors Bancorp shall not relieve it from any liability which it may have under this Section 6.09, except to the extent such failure materially prejudices Investors Bancorp) and shall deliver to Investors Bancorp the undertaking referred to in the previous section. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Investors Bancorp or an insurance carrier pursuant to Section 6.09(c) below shall have the right to assume the defense thereof and Investors Bancorp shall not be liable to such Indemnified Persons for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that if Investors Bancorp elects not to assume such defense or counsel for the Indemnified Persons advises that there are issues which raise conflicts of interest between Investors Bancorp and the Indemnified Persons, the Indemnified Persons may retain counsel which is reasonably satisfactory to Investors Bancorp, unless the Indemnified Person is provided with counsel by an insurance carrier pursuant to Section 6.09(c) below, and Investors Bancorp shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such counsel for the Indemnified Persons (which may not exceed one firm in any jurisdiction), (ii) Buyer the Indemnified Persons will cooperate in the defense of any such matter, (iii) Investors Bancorp shall honor, not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (iv) Investors Bancorp shall cause the Company and its Subsidiaries to honor, and, have no obligation hereunder to the extent reasonably possible, that a federal or state banking agency or a court of competent jurisdiction shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for determine that indemnification contained of an Indemnified Person in the Organizational Documents manner contemplated hereby is prohibited by applicable laws and terms of any indemnification agreementsregulations.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer that either Investors Bancorp or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving bank or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Investors Bancorp shall assume the obligations set forth in this Section 5.46.09.
(c) Investors Bancorp shall use its best efforts to maintain, or shall cause Investors Bank to maintain, in effect for six years following the Effective Time, the current directors’ and officers’ liability insurance policies covering the officers and directors of Brooklyn Bancorp (provided, that Investors Bancorp may substitute therefor policies of 45 at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring at or prior to the Effective Time; provided, however, that in no event shall Investors Bancorp be required to expend pursuant to this Section 7.9.3 an amount that in the aggregate is more than 200% of the annual cost currently expended by Brooklyn Bancorp with respect to such insurance (the “Maximum Amount”); provided, further, that if the amount of the annual premium necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Investors Bancorp shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for a premium equal to the Maximum Amount. In connection with the foregoing, Brooklyn Bancorp agrees in order for Investors Bancorp to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
(d) The provisions obligations of Investors Bancorp provided under this Section 5.4 6.09 are intended to be for enforceable against Investors Bancorp directly by the benefit of, Indemnified Parties and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators binding on all respective successors and his or her other representativespermitted assigns of Investors Bancorp.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Buyer agrees that all rights to indemnification existing in favor, and all limitations on the personal liability, of any director, officer or other employee of Middlesex provided for in Middlesex's articles of organization or by-laws as in effect as of the date hereof with respect to matters occurring prior to the extent required by law Closing Date shall survive and continue in effect following the consummation of the Stock Purchase. In the event that (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective Buyer's 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) the Buyer or any of his successors or assigns transfers or conveys the Shares or any other controlling interest in Middlesex or otherwise transfers or conveys all or a substantial portion substantially all of its Middlesex's properties and assets to any personPerson, then, and in either each such case, to the extent necessary, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall Buyer assume the obligations set forth in this Section 5.45.12(a).
(db) The provisions Buyer shall cause the persons serving as officers and directors of Middlesex immediately prior to the consummation of the Stock Purchase to be covered for a period of six (6) years from the Closing Date by a directors' and officers' liability insurance policy containing terms and conditions, including terms of coverage and coverage amounts, which are at least as advantageous as the terms and conditions of the directors' and officers' liability insurance policy maintained as of the date hereof by Seller with respect to acts or omissions occurring at or prior to the Closing Date, which were committed by any such officers or directors of Middlesex in their capacity as such. Buyers' obligation under this Section 5.4 are intended 5.12(b) shall be deemed to be satisfied without any further action or expenditure by Buyer if and to the extent that Seller notifies Buyer in writing that the continuing directors' and officers' liability insurance coverage to be provided for the benefit of, of the directors and shall officers of Seller and its subsidiaries pursuant to the terms of the UST Agreement provides satisfactory coverage to those persons who would otherwise be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators covered by the directors' and his or her other representativesofficers' liability insurance policy contemplated by this Section 5.12(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Affiliated Community Bancorp Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, the Parent shall cause the Surviving Corporation to and the extent required by law (i) Buyer will not take any action (including Surviving Corporation shall indemnify, defend and hold harmless the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employeeofficers, agentdirectors, director employees and agents of the Company (each a "Covered Person") against all losses, expenses, claims, damages, liabilities or officer amounts ("Losses") that are paid in settlement (provided that, with respect to amounts paid in settlement, such settlement has been approved by the Parent, such approval not to be unreasonably withheld or delayed) of, or otherwise in connection with, any claim, action, suit, proceeding or investigation (a "Claim") based in whole or in part on the fact that such person is or was a director, officer, employee or agent of the Company and its Subsidiaries (each, together with such person’s heirs, executors arising out of actions or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries omissions occurring at or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the ClosingEffective Time (including, without limitation, the prior written consent of Transactions), in each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, case to the full extent reasonably possiblepermitted under the DGCL and the Company's certificate of incorporation and bylaws as in effect on the date of this Agreement. The Surviving Corporation shall pay, shall exercise when and as such expenses are incurred by a Covered Person, any expenses in advance of the voting, governance and contractual powers available final disposition of any such Claim to each Covered Person to the Company and its Subsidiaries fullest extent permitted under the DGCL upon receipt from the Covered Person to cause whom expenses are advanced of any undertaking to repay such advances required under the Ilijan Entities to honor, such provisions for indemnification contained DGCL. The Surviving Corporation shall cooperate in the Organizational Documents and terms defense of any indemnification agreementssuch matter.
(b) The Parent shall cause the Surviving Corporation to keep in effect provisions in its certificate of incorporation and bylaws providing for exculpation of director liability, advancement of expenses prior to disposition of any Claim and indemnification of the Covered Persons, in each case to the fullest extent permitted under the DGCL, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by law that would enlarge the right of indemnification of the Covered Persons.
(c) For a period of six (6) years after the Closing DateEffective Time, Buyer the Parent shall cause the Surviving Corporation to be maintained maintain in effect directors’ the current policies of directors and officers’ officers liability insurance to a minimum limit of US$50 million maintained by the Company covering persons who are currently covered by the Company's directors and officers liability insurance policies with respect to claims arising from actions or related to facts or events that occurred omissions occurring at or before prior to the Closing.
Effective Time to the extent that such policies are available; PROVIDED, that policies of at least the same coverage containing terms and conditions which are no less advantageous to the insureds may be substituted therefor, PROVIDED, FURTHER, that in no event shall the Surviving Corporation be required to expend amounts for premiums per annum in excess of 200% of the annual premiums prevailing during the twelve-month period ended August 31, 1998 (c) In the event that, after the Closing Datesuch annual premiums, the Company "Maximum Premium") to maintain or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be procure insurance coverage pursuant to this Section 6.3, or, if the continuing or surviving entity cost of such consolidation or merger or (ii) transfers all or a substantial portion coverage exceeds the Maximum Premium, the maximum amount of its properties and assets coverage that can be purchased for the Maximum Premium. The Company represents to any person, then, and in either such case, proper provisions shall be made so the Parent that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Maximum Premium is $441,452.
(d) The provisions of this Section 5.4 6.3 shall survive the consummation of the Merger and expressly are intended to be for benefit each of the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesCovered Persons.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain the same provisions with respect to indemnification, advancement and director and officer exculpation set forth in the Certificate of Incorporation and Bylaws of the Company on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of persons who at any time prior to the extent Effective Time were entitled to indemnification, advancement or exculpation under the Certificate of Incorporation or Bylaws of the Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law Law and prior notification is given to such affected persons.
(ib) Buyer will not take After the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable Law and as required by any action indemnification agreements of the Company (including as each is in effect on the exercise of voting rights in connection with the Ilijan Entities) so as to amenddate hereof), modify or repeal the provisions for indemnification of any indemnify and hold harmless, each present and former employee, agent, director or officer of the Company and its Subsidiaries each Company Subsidiary and each such person that served at the request of the Company or any Company Subsidiary as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “"Indemnified Parties”") against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, administrative or investigative, arising out of or pertaining to any action or omission in their capacities as officers or directors, in each case occurring before the Effective Time (including the transactions contemplated by this Agreement). Nothing contained in herein shall make Parent, Merger Sub, the Organizational Documents of the Company, its Subsidiaries Company or the Ilijan EntitiesSurviving Corporation an insurer, a co-insurer or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified an excess insurer in respect of their serving any insurance policies that may provide coverage for any of the foregoing, nor shall this Section 6.05 relieve the obligations of any insurer in respect thereto. Without limiting the foregoing, in the event of any such capacities prior to claim, action, suit, proceeding or investigation, (i) the Closing, without Surviving Corporation shall advance or pay the prior written consent reasonable fees and expenses of each affected counsel selected by any Indemnified Party, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and following the execution of an undertaking by the Indemnified Party to repay such advanced amounts if upon final resolution it is ultimately determined such Indemnified Person is not entitled to indemnification and (ii) Buyer the Surviving Corporation shall honorcooperate in the defense of any such matter; provided, and however, that the Surviving Corporation shall cause not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed). Nothing in this Section 6.05 shall supersede any agreements in effect as of the date hereof between the Company and its Subsidiaries to honor, and, an Indemnified Party
(c) Subject to the extent reasonably possiblenext sentence, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent shall cause to be maintained in effect the current directors’ ' and officers’ ' liability insurance to a minimum limit of US$50 million policies maintained by the Company with respect to claims arising from or related to facts or events that occurred at or before prior to the Closing.
Effective Time (cincluding with respect to the transactions contemplated by this Agreement); provided, however, that in no event shall Parent be required to expend pursuant to this Section 6.05(c) In the event that, after the Closing Date, more than an amount per year equal to 150% of current annual premiums paid by the Company for such insurance; provided further that if the existing directors' and officers' liability insurance policy expires, is terminated or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person cancelled during such six-year period, Parent shall cause to be obtained as much directors' and shall not officers' liability insurance as can be obtained for the continuing or surviving entity remainder of such consolidation or merger or period for a premium not in excess (iion an annualized basis) transfers all or a substantial portion of its properties and assets to any person, then, and in either 150% of the current annual premium paid by the Company for such case, proper insurance. The provisions of this Section 6.05(c) shall be made so that deemed to have been satisfied if, with the successors and assigns cooperation of the Company, its Subsidiaries Parent obtains prepaid policies prior to the Closing which policies provide such directors and officers with coverage no less advantageous to the insured for an aggregate period of six years with respect to claims arising from facts or Buyer, as events that occurred on or before the case may be, shall assume the obligations set forth in this Section 5.4Effective Time.
(d) The provisions of this This Section 5.4 are 6.05 is intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each the Indemnified Party, his or her heirs, executors or administrators Parties and his or her other representativestheir heirs and personal representatives and shall be binding on the Surviving Corporation and its successors and assigns.
Appears in 1 contract
Samples: Merger Agreement (Selectica Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after following the Closing DateClosing, the Company Group shall, and the Buyer shall cause the Company Group to, to be maintained the fullest extent provided by the Company Group’s Organizational Documents as in effect immediately prior to Closing or, to the extent more favorable and not inconsistent with such Organizational Documents, applicable Law as in effect immediately prior to Closing, indemnify and hold harmless (and advance expenses, provided the person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such person is not entitled to indemnification) the present and former directors and officers of any member of the Company Group or any fiduciaries under all Company Plans (each a “Company Indemnified Party”) against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Closing, including the approval of this Agreement or the transactions contemplated hereby or arising out of or pertaining to the transactions contemplated hereby, whether asserted or claimed prior to, at or after the Closing. For the avoidance of doubt, nothing contained in this Section 5.9(a) shall provide any rights to any Person for any acts or omissions by such Person occurring or alleged to occur in such Person’s capacity as a Seller. The indemnity provided for in this Section 5.9(a) is not intended and shall not be deemed to limit, condition, reduce or supplant the primary availability of any insurance that would be available in the absence of such indemnity.
(b) The Company Group shall, and the Buyer shall cause the Company Group to, at no expense to the beneficiaries, either (i) continue to maintain in effect for six (6) years from the Closing directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to a minimum limit of US$50 million the Company Indemnified Parties as the Company Group’s currently existing directors’ and officers’ liability insurance and fiduciary liability insurance (the “Current Insurance”) with respect to claims arising from matters existing or related to facts or events that occurred occurring at or before prior to the Closing (including the transactions contemplated hereby), or (ii) purchase a six (6) year extended reporting period endorsement under the Current Insurance (a “Reporting Tail Endorsement”) with respect to matters existing or occurring at or prior to the Closing (including the transactions contemplated hereby) and maintain this endorsement in full force and effect for its full term. Notwithstanding the foregoing, in no event shall the Buyer or the Company Group be required to expend for any such policy an annual premium amount in excess of 100% of the annual premium paid by the Company Group for such Current Insurance policy if purchasing the coverage pursuant to subsection (i), nor a total premium amount in excess of 150% of the annual premiums paid by the Company Group for such Current Insurance policy if purchasing the coverage pursuant to subsection (ii); provided further that if the premium for either insurance policy exceeds the applicable amount, the Buyer or the Company Group shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Notwithstanding the first sentence of this Section 5.9(b), if the Company Group has obtained a Reporting Tail Endorsement prior to the Closing, (a) the Company Group shall, and the Buyer shall cause the Company Group to, maintain in full force and effect for its full term such policy and (b) neither the Buyer nor (following Closing) the Company Group shall have any other obligations pursuant to this Section 5.9(b).
(c) In the event that, after the Closing Date, If the Company or Buyer Group or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, the Buyer shall cause proper provisions shall to be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Company Group shall assume all of the obligations set forth in this Section 5.45.9.
(d) The provisions of this This Section 5.4 are 5.9 is intended to be for the benefit of, and to grant third-party rights to, the Company Indemnified Parties and shall be enforceable bybinding on all successors and assigns of the Buyer and the Company Group. Each Company Indemnified Party shall be a third-party beneficiary of this Section 5.9, and entitled to enforce the covenants contained in this Section 5.9. The rights of the Company Indemnified Parties under this Section 5.9 shall be in addition to Sellersany rights such Company Indemnified Parties may have under the Organizational Documents of the Company Group or under any applicable Contracts, each Indemnified Party, his insurance policies or her heirs, executors or administrators and his or her other representativesLaws.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cree Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law The Surviving Corporation shall (i) Buyer will not take any action indemnify and hold harmless all past and present directors, officers and employees (including the exercise in all of voting rights in connection with the Ilijan Entitiestheir capacities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company Airborne and its Subsidiaries (eachwhich, together with for the avoidance of doubt, includes Airco up until the Effective Time) (such person’s heirs, executors or administrators, an “Indemnified Party” and, collectivelyPersons, the “Indemnified Parties”) contained (A) to the same extent such Persons are indemnified as of the date hereof (or, in the Organizational Documents case of Airco, as they would have be so entitled pursuant to the Companycertificate of incorporation and bylaws attached as Exhibits hereto if such documents were in effect) by Airborne pursuant to Airborne’s or any Subsidiaries’ certificate of incorporation and bylaws as in existence on the date hereof and (B) without limitation to clause (A), its Subsidiaries to the fullest extent permitted by law, for any reasonable costs or expenses (including advancing reasonable attorney’s fees and expenses to the Ilijan Entitiesfullest extent permitted by law), or the terms of judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any indemnification agreementsAction, in such a manner as would adversely affect the rights of any Indemnified Parties each case arising out of, relating to be indemnified or in respect of their serving in such capacities connection with acts or omissions occurring or alleged to have occurred prior to the ClosingEffective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), so long as such Person gives the Surviving Corporation the opportunity to defend any such Action and does not effect any settlement without the Surviving Corporation’s prior written consent of each affected Indemnified Party(such consent not to be unreasonably withheld or delayed), and (ii) Buyer shall honorinclude and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) certificate of incorporation and bylaws after the Effective Time, provision regarding the elimination of liability of directors and shall cause the Company and its Subsidiaries to honorindemnification of the Indemnified Parties which are, andin the aggregate, no less advantageous to the extent reasonably possible, shall exercise intended beneficiaries than the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such corresponding provisions for indemnification contained in the Organizational Documents current certificate of incorporation and terms bylaws of any indemnification agreementsAirborne.
(b) For DHL and the Surviving Corporation shall cause to be maintained for a period of at least six (6) years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time coverage under Airborne’s directors’ and officers’ liability insurance policies as in effect on the date hereof for acts or omissions occurring prior to the Effective Time (“D&O Insurance”); provided that (A) DHL may substitute therefor policies with a minimum limit reputable insurer of US$50 million comparable credit quality of substantially similar coverage and amounts containing terms no less advantageous in the aggregate to the Indemnified Parties, (B) if the existing D&O Insurance expires or is canceled during such period, DHL 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, (C) in no event shall DHL or the Surviving Corporation be required to expend more than 250% of the last annual premiums paid by Airborne immediately prior to the Effective Time (the “Maximum Premium Amount”) to maintain or procure D&O Insurance pursuant to this Section 5.10 and (D) if the annual premiums of such D&O Insurance would exceed the Maximum Premium Amount, DHL or the Surviving Corporation shall obtain a policy with respect to claims arising from or related to facts or events that occurred at or before the Closinggreatest coverage reasonably available for a cost not exceeding the Maximum Premium Amount.
(c) The provisions of this Section 5.10 shall survive consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
(d) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, then and in either such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries Surviving Corporation or Buyersuch other entity that after (i) or (ii) conducts the greater part of the United States air express business of DHL, as the case may be, shall assume the obligations in this Section 5.10.
(e) The Surviving Corporation shall pay all reasonable costs and expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations set forth in this Section 5.45.10.
(df) The provisions Prior to the Effective Time, Airborne may renew or replace its existing D&O Insurance with policies that provide substantially similar coverage for a one (1) year period on such commercially reasonable terms as are available in the market for someone similarly situated to Airborne; provided that, if such insurance is not available on commercially reasonable terms for a one year period, Airborne may obtain coverage for a period of this Section 5.4 are intended up to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativestwo (2) years.
Appears in 1 contract
Samples: Merger Agreement (Airborne Inc /De/)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Radiant agrees that all rights to indemnification (and advancement of expenses) and all rights with respect to the extent required by law elimination or limitation of liability now existing in favor of all persons (ihereinafter referred to as “Covered Persons”) Buyer will who at any time (x) prior to the Closing Date were directors or officers of Radiant, and (y) after the Closing Date, were directors, officers or employees of Enterprise, provided in Radiant’s Articles of Incorporation and Bylaws and under any indemnification agreement or other contract listed in Schedule 2.13 attached hereto, as in effect as of the Closing Date, with respect to matters occurring at or prior to the Closing Date, shall survive after the Closing Date and shall continue in full force and effect for a period of six years after the Closing Date. During such period, Radiant shall not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, repeal or otherwise modify or repeal the such provisions for indemnification (and advancement of expenses) and elimination or limitation of liability in any present manner that would materially and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights thereunder of any Indemnified Parties to be indemnified Covered Persons in respect of their serving in such capacities actions or omissions occurring at or prior to the ClosingClose of the Separation Date (including, without limitation, the transactions contemplated by the Exchange Agreement), without the prior written consent of Enterprise, which consent shall not be unreasonably withheld or delayed, unless such modification is required by law; provided, however, that in the event any claim or claims are asserted or made either prior to the Closing Date or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims. Without limiting the foregoing, from and after the Closing Date, Radiant shall indemnify, defend and hold harmless each affected Indemnified PartyCovered Person from and against any and all Liabilities of the Covered Persons relating to, arising out of or resulting from any claim of a current or former shareholder of Radiant against any of the Covered Persons made in connection with or related to the execution and delivery of the Exchange Agreement or any of the Related Agreements, or consummation of the Separation and the Exchange, whether asserted or claimed prior to, at or after the Closing Date, and shall pay each Covered Person any expenses, as incurred, in advance of the final disposition of any action relating to such claims; provided, however, that the Covered Persons shall not be entitled to such indemnity if a court of competent jurisdiction issues a final, nonappealable Order (as such term is defined in the Exchange Agreement) that (x) Xxxxx did not provide the Special Committee with the “required disclosure” (as such term is defined in Section 14-2-860(4) of the Georgia Business Corporation Code) to the extent such information was not known by any member thereof, and (iiy) Buyer shall honor, the Separation and shall cause the Company and its Subsidiaries to honor, and, Exchange are not entitled to the extent reasonably possible, shall exercise protections afforded by Section 14-2-861(b) of the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsGeorgia Business Corporation Code.
(b) For Radiant shall maintain, on a primary, non-contributory basis, for a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers,’ liability errors and omissions, professional liability, employment practices, fiduciary, ERISA, and/or any other insurance to (including all primary, umbrella and excess coverages) that provides coverage on a minimum limit claims made basis if (but only if) such coverage is now provided on this basis (in at least the same amounts and on terms no less advantageous than the coverage currently provided under such policies) for events or in respect of US$50 million with respect to claims arising from actions or related to facts or events that occurred omissions occurring at or before the Closing.
(c) In the event that, after prior to the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Date for Covered Persons.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Buyer covenants and agrees that so long as it, directly or indirectly, controls the Company, the provisions with respect to elimination of liability and indemnification that are set forth in the certificate of incorporation and bylaws of the Company and the comparable governing instruments of its Subsidiaries as of the Closing shall not be amended, repealed or otherwise modified for a period of six years from the Closing in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendClosing were directors, modify officers, employees or repeal the provisions for indemnification of any present and former employee, agent, director or officer agents of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsSubsidiaries.
(b) For a period of six (6) years after On or before the Closing Date, Buyer the Company shall cause purchase for the benefit of its current directors and officers an insurance and indemnification policy for one year that provides coverage for events occurring at or prior to the Closing (the “Tail Coverage”). The Tail Coverage shall be maintained in effect on terms no less favorable than the Company’s existing directors’ and officers’ liability insurance insurance; provided, however, that the Company shall not pay an annual premium for the Tail Coverage in excess of 250% of the last annual premium paid by the Company for such insurance, but in such case shall purchase the maximum amount of coverage available for such amount. The Buyer shall maintain, or cause the Company to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before maintain, such coverage in effect for not less than one (1) year after the ClosingClosing Date.
(c) In the event that, after the Closing Date, If the Company or Buyer or any of their respective Subsidiaries Subsidiary or any of their respective successors or and assigns (i) consolidates with or merges into any other person Person and the Company or such Subsidiary shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, then and in either each such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Company and each Subsidiary shall assume the obligations set forth in this Section 5.4.
7.13. In addition, if the Buyer sells or otherwise disposes of all or substantially all of its equity interest in the Company or any Subsidiary or otherwise disposes control of the Company or any Subsidiary, then and in each such case, proper provisions shall be made so that the acquiror of the Company and such Subsidiary shall assume the obligations set forth in this Section 7.13. (d) The provisions of this Section 5.4 7.13 shall survive the Closing and are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators present and former director and officer of the Company and each of its Subsidiaries and his or her other heirs and representatives, and nothing herein shall affect any indemnification rights that any such Person and his or her heirs and representatives may have under the certificate of incorporation or bylaws of the Company or any Subsidiary or any contract or applicable law and shall be enforceable by such Persons.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Merger Sub agree that the Surviving Corporation’s articles of incorporation and code of regulations shall contain provisions no less favorable with respect to exculpation from liabilities and indemnification of the extent present (as of the Effective Time) or former directors, officers, employees and agents of the Company than are currently provided in the Articles of Incorporation and Code of Regulations, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals until the expiration of the statutes of limitations applicable to such matters or unless amendment, modification or repeal is required by law applicable Law.
(ib) Buyer will not take Without limiting any action additional rights to indemnification or exculpation that any Person may have under any agreement, Company Plan or otherwise, which Parent shall cause the Surviving Corporation to honor, from and after the Effective Time, Parent shall indemnify and hold harmless each present (including as of the exercise of voting rights in connection with the Ilijan EntitiesEffective Time) so as to amend, modify or repeal the provisions for indemnification of any present and former employeeofficer, agentdirector, director or officer employee and agent of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, and collectively, the “Indemnified Parties”) contained ), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements, incurred in connection with any proceeding, whether civil, criminal, administrative or investigative, arising out of, pertaining to or in connection with the Organizational Documents fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries, or of another entity if such service was at the request of the Company, its Subsidiaries whether asserted or claimed prior to, at or after the Ilijan EntitiesEffective Time, or to the terms fullest extent permitted under applicable law. In the event of any indemnification agreementssuch proceeding, each Indemnified Party will be entitled to advancement of expenses incurred in the defense of the proceeding from Parent (provided that any Person to whom expenses are advanced shall have provided an undertaking to repay such a manner as would adversely affect advances if it is finally determined that such Person is not entitled to indemnification). Parent shall cooperate with the rights Indemnified Parties in the defense of any Indemnified Parties such matter and any determination made or required to be indemnified in made with respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected whether an Indemnified Party’s conduct complies with standards under applicable Law shall be made by independent legal counsel acceptable to Parent, as the case may be, and the Indemnified Party. The Surviving Corporation shall perform its obligations under such indemnification provisions in accordance with their respective terms.
(iic) Buyer The Company shall honorpurchase by the Effective Time, and Parent shall cause the Company and its Subsidiaries Surviving Corporation to honormaintain, and, tail policies to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect current directors’ and officers’ liability insurance policies maintained on the date of this Agreement by the Company and with respect to the directors and officers who are currently covered by the Company’s directors’ and officers’ liability insurance policies, which tail policies (i) shall not have a minimum limit premium in excess of US$50 million 300% of the annual premium most recently paid by the Company prior to the date hereof to maintain the existing policies (which amount is set forth in Section 4.5 of the Company Disclosure Schedule), (ii) shall be effective for a period of at least six years from and after the Effective Time with respect to claims arising from or related to facts or events that existed or occurred prior to the Effective Time, and (iii) shall contain coverage that is at least as protective to such directors and officers as the coverage provided by such existing policies (complete and accurate copies of which have been made available to Parent); provided, however, that, if equivalent coverage cannot be obtained or before can be obtained only by paying an aggregate premium in excess of 300% of such amount, the ClosingCompany shall only be required to obtain (and the Surviving Corporation shall only be required to maintain) as much coverage as can be obtained by paying an aggregate premium equal to 300% of such amount.
(cd) In This Section 4.5 shall survive the event thatconsummation of the Merger and is intended to benefit, after and shall be enforceable by, any Person or entity referred to in clause (a) of this Section 4.5 (whether or not parties to this Agreement). If Parent or the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of resulting from such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of Parent or the Company, its Subsidiaries or Buyer, as the case may be, Surviving Corporation shall assume the applicable obligations set forth in this Section 5.44.5.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (Midland Co)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law (i) Buyer law, until the fifth anniversary of the Effective Time, Parent will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present directors, officers, stockholders, employees or agents contained in the certificates or articles of incorporation or bylaws (or other comparable charter documents) of the Surviving Corporation and former employee, agent, director or officer its Subsidiaries (which as of the Effective Time shall be no less favorable to such individuals than those maintained by the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, on the “Indemnified Parties”date hereof) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would materially and adversely affect the rights of any individual who shall have served as a director, officer, stockholder, employee or agent of the Company or any of its Subsidiaries prior to the Effective Time (each an "Indemnified Parties Party") to be indemnified by such corporations in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, andEffective Time. Parent shall, to the fullest extent reasonably possibleauthorized by the California Code or any other applicable law as the same exists or may hereafter be amended (but, shall exercise in the votingcase of any such amendment, governance and contractual powers available only to the extent that such amendment permits Parent to provide broader indemnification rights than said law permitted Parent to provide prior to such amendment), indemnify all directors, officers, employees, agents and stockholders who are officers or directors of the Company against any liability or losses (including attorney's fees for counsel who are reasonably acceptable to Parent) any of them may incur in connection with any action, proceeding or investigation with which they become involved prior to or within five (5) years from the Effective Time as officers, directors, employees, agents or stockholders of the Company. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by Parent any expenses incurred in defending any such proceeding in advance of its Subsidiaries to cause the Ilijan Entities to honorfinal disposition; provided, however, that, if so required by Parent, such provisions advance shall be made only upon delivery to Parent of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. Parent shall not be liable for indemnification contained any settlement effected without its written consent (which consent shall not be unreasonably withheld). Parent shall not be obligated pursuant to this Section to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single action, except to the extent that, in the Organizational Documents opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such action, or one or more of such Indemnified Parties and terms Parent have conflicting interests in the outcome of any indemnification agreementssuch action. Parent may obtain directors' and officers' liability insurance covering its obligations under this Section.
(b) For a period The provisions of six (6) years after the Closing Date, Buyer shall cause this Section are intended to be maintained for the benefit of, and shall be enforceable by, each Indemnified Party, and his or her heirs and legal representatives, and shall be in effect directors’ and officers’ liability insurance addition to a minimum limit any other rights an Indemnified Party may have under the certificate or articles of US$50 million with respect to claims arising from incorporation or related to facts bylaws of the Surviving Corporation or events that occurred at any of its Subsidiaries, under the California Code or before the Closingotherwise.
(c) In the event thatthe Parent or the Surviving Corporation, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns 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 a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries Parent or Buyerthe Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in paragraph (a) of this Section 5.4Section.
(d) The provisions In the event the Parent or the Surviving Corporation, or any of this Section 5.4 are intended their respective successors or assigns, obtains directors' and officers' liability insurance covering any of their directors or officers, such insurance shall also cover the directors and officers of the Company as of the date hereof with respect to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesobligations hereunder.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to For the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after following the Closing DateEffective Time, Buyer Purchaser shall (and shall cause the Surviving Corporation and the Company Subsidiaries to) continue in full force and effect all rights to be maintained indemnification and exculpation and related rights to advancement of expenses on the part of each person who at the Effective Time is a current or former director, officer or limited liability company manager of the Company or the Company Subsidiaries (collectively, the “Indemnified Directors or Officers”), including all such rights existing pursuant to the DGCL, the Organizational Documents of the Company or the Company Subsidiaries, or any written agreement between any Indemnified Director or Officer and the Company or the Company Subsidiaries in effect on the date of this Agreement and set forth on Section 6.9 of the Disclosure Schedule. Purchaser also shall (and shall cause the Surviving Corporation and the Company Subsidiaries to), to the fullest extent permitted under applicable Law, indemnify and hold harmless each of the Indemnified Director or Officers against any and all Losses in connection with any investigation or Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to any actual or alleged acts or omissions prior to the Effective Time occurring in connection with or arising out of such Indemnified Director or Officer’s service, prior to the Effective Time, as directors, officers or managers of the Company or the Company Subsidiaries, as applicable, or as trustees, fiduciaries or administrators of any plan for the benefit of employees of the Company or the Company Subsidiaries (each, a “Covered Proceeding”); provided that if any Covered Proceeding is commenced within such time period, all rights to indemnification in respect of such Covered Proceeding shall continue until final disposition of such Covered Proceeding. In the event that any Indemnified Director or Officer is named in or otherwise becomes involved in a Covered Proceeding, Purchaser shall (and shall cause the Surviving Corporation and the Company Subsidiaries to), to the fullest extent permitted under applicable Law, pay, as incurred, within twenty (20) Business Days after receipt of such Indemnified Director or Officer’s request and statement therefor from time to time, such Indemnified Director or Officer’s reasonable, out-of-pocket and documented fees and other expenses of counsel selected by such Indemnified Director or Officer incurred in connection therewith, including the cost of any investigation, preparation and settlement; provided, however, that such payments need not be made unless Purchaser shall have received an undertaking from such Indemnified Director or Officer to repay in full such amount to Purchaser (or the Surviving Corporation or the Company Subsidiaries) if it is determined by a court of competent jurisdiction, in a final order or decree not subject to further appeal, that none of Purchaser, the Surviving Corporation or the Company Subsidiaries is legally permitted to indemnify such Indemnified Director or Officer under applicable Law and provided, further, that none of Purchaser, the Surviving Corporation or the Company Subsidiaries, in connection with any one such Covered Proceeding or separate but substantially similar Covered Proceedings arising out of the same general allegations, shall be liable for reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified persons except to the extent that an Indemnified Director or Officer has been advised by counsel that there are conflicting interests between it and any other Indemnified Director or Officer(s). Purchaser shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by any Indemnified Director or Officer in enforcing the indemnity and other obligations provided for in this Section 6.9. Purchaser shall pay all reasonable fees and expenses, including fees and expenses of counsel, that may be incurred by and Indemnified Director or Officer in enforcing the indemnity and other obligations provided for in this Section 6.9.
(b) Prior to the Effective Time, the Company or the Company Subsidiaries shall, purchase a six (6) year “tail” coverage covering acts or omissions of the Indemnified Directors or Officers prior to the Effective Time on terms no less favorable to the Indemnified Directors and Officers than the coverage described in this Section 6.9(b) to the directors’ and officers’ liability insurance policy or policies maintained by the Company or the Company Subsidiaries at the date of this Agreement (including coverage amounts and limitations). The cost of such “tail” coverage shall be deemed to be a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the ClosingCompany Transaction Expense.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations The covenants set forth in this Section 5.4.
(d) The provisions of this Section 5.4 6.9 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each of the Indemnified Party, his Directors or her Officers and their respective heirs, executors beneficiaries, legatees and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Director or administrators Officer is entitled, whether pursuant to Law, Contract or otherwise.
(d) If, after the Closing, Purchaser, the Surviving Corporation, the Company Subsidiaries or any of their respective successors or assigns shall: (i) merge or consolidate with or merge into any other Person, or otherwise engage in any business combination with any other Person, and his shall not be the surviving or her other representativescontinuing Person of such consolidation, merger or business combination; or (ii) transfer all or substantially all of their respective assets and properties to any Person, then in each such case, Purchaser shall take all actions reasonably necessary to ensure that the successors or assigns of Purchaser, the Surviving Corporation or the Company Subsidiaries (as applicable) shall assume all of the obligations set forth in this Section 6.9.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to After the extent required by law Effective Time through the sixth anniversary of the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each present (ias of the Effective Time) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agentofficer, director or officer employee of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “D&O Indemnified Parties”Persons“), from and against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses (including attorneys’ fees and expenses) contained incurred in connection with any claim, action, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the Organizational Documents fact that the D&O Indemnified Person is or was an officer, director or employee of the Company, Company or any of its Subsidiaries with respect to matters existing at or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities occurring prior to the ClosingEffective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law; provided, however, that no D&O Indemnified Person may settle any such claim without the prior written consent approval of each affected Parent, such approval not to be unreasonably withheld or delayed. Each D&O Indemnified PartyPerson will be entitled to advancement of reasonable expenses incurred in the defense of any claim, action, proceeding or investigation from Parent or the Surviving Corporation within thirty (30) Business Days of receipt by Parent or the Surviving Corporation from the D&O Indemnified Person of a of a statement providing reasonable detail on (i) the nature and amount (to the extent known) of the claim which such D&O Indemnified Person believes is subject to indemnification, (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers known defenses available to such person against such claim and (iii) counsel proposed to be engaged by such D&O indemnified Person (which counsel is subject to approval (not to be unreasonably withheld or delayed) by the Company Surviving Corporation); subject to Parent’s receipt of an undertaking by or on behalf of such D&O Indemnified Person to repay such legal fees, costs and its Subsidiaries expenses if it is ultimately determined under applicable laws that such D&O Indemnified Person is not entitled to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsbe indemnified.
(b) For Parent shall cause the Surviving Corporation to maintain in effect (i) in its certificate of incorporation and bylaws or the comparable documents of any successor corporation for a period of six (6) years after the Closing DateEffective Time, Buyer shall cause to be maintained the current provisions regarding elimination of liability of directors and indemnification of, and advancement of expenses to, officers, directors and employees contained in effect the certificate of incorporation and bylaws of the Company and (ii) for a period of six (6) years after the Effective Time, the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to a minimum limit of US$50 million the insured) with respect to claims arising from or related to facts or events that occurred at on or before the ClosingEffective Time; provided, however, that in no event shall the Surviving Corporation be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by the Company for such insurance; 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 Company represents that annual premiums currently paid by the Company and its Subsidiaries for such insurance are approximately $177,153.
(c) The Surviving Corporation shall honor and fulfill in all respects the indemnification obligations of the Company pursuant to indemnification agreements and employment agreements (the parties under such agreements being referred to as the “Covered Persons“) with the Company’s directors and officers existing at or before the Effective Time and identified in Section 5.5(c) of the Company Disclosure Schedule.
(d) Notwithstanding any time limit herein to the contrary, if any claim, action, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any D&O Indemnified Person on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.5 (without regard to any such time limit) shall continue in effect until the final disposition of such claim, action, proceeding or investigation.
(e) In the event that, after that Parent or the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions provision shall be made so that the successors and or assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume succeed to the obligations set forth in this Section 5.45.5.
(df) The provisions This Section 5.5 shall survive the consummation of this Section 5.4 are the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation, the D&O Indemnified Persons and the Covered Persons, shall be for binding on all successors and assigns of the benefit of, Surviving Corporation and shall be enforceable by, in addition to Sellers, each by the D&O Indemnified Party, his or her heirs, executors or administrators Persons and his or her other representativesthe Covered Persons.
Appears in 1 contract
Samples: Merger Agreement (Fastentech Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except All rights to indemnification, advancement of expenses and exculpation existing on the extent required by law (i) Buyer will not take any action (including the exercise date of voting rights this Agreement in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and or former employee, agent, director or officer of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained as provided in the Company Organizational Documents Documents, or any organizational documents of any of the Company’s Subsidiaries, or in agreements between an Indemnified Party and the Company or one of its Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect after the Effective Time and the provisions in the Company Organizational Documents, any organizational documents of any of the Company’s Subsidiaries or the Ilijan Entitiesany such agreement providing for such indemnification advancement of expenses and exculpation shall not be amended, repealed or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and individual.
(iib) Buyer shall honorParent shall, and shall cause the Surviving Corporation to, indemnify all Indemnified Parties to the fullest extent permitted by applicable Laws with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Legal Action, whenever asserted, based on or arising out of, in whole or in part, (i) the fact that an Indemnified Party was a director or officer of the Company and or any of its Subsidiaries to honor, and, at or prior to the extent reasonably possible, shall exercise Effective Time or (ii) acts and omissions arising out of or relating to their services as directors or officers of the voting, governance and contractual powers available Company or its Subsidiaries occurring at or prior to the Company Effective Time. If any Indemnified Party is or becomes involved in any such Legal Action, Parent shall pay as incurred such Indemnified Party’s legal fees, costs and its Subsidiaries expenses incurred in connection with such Legal Action, subject to cause the Ilijan Entities Parent’s receipt of an undertaking by or on behalf of such Indemnified Party to honorrepay such legal fees, costs and expenses if it is ultimately determined under applicable Laws that such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsIndemnified Party is not entitled to be indemnified.
(bc) For a period of six (6) Parent shall, or shall cause the Surviving Corporation to, maintain in effect for at least seven years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time the current policies of directors’ and officers’ liability insurance maintained by the Company, or policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to a minimum limit the individuals covered by such policies than the terms of US$50 million with respect such policies in effect on the date hereof (“D&O Replacement Policy”), so long as Parent and the Surviving Corporation are not required to claims arising from pay an annual premium in excess of 200% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement (the dollar amount of such percentage being the “Maximum Premium”). If Parent is unable to obtain, or related unable to facts so cause to be obtained, the insurance described in the prior sentence for an amount less than or events equal to the Maximum Premium, it shall instead obtain, or cause the Surviving Corporation to obtain, as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Any insurance obtained by Parent or the Surviving Corporation pursuant to this Section 5.10(c) shall not result in gaps in coverage. The Company represents and agrees that occurred at or before the Closing.
(c) In Maximum Premium as of the event that, after date hereof is $774,000. Prior to the Closing DateEffective Time, the Company may, and after the Effective Time, Parent may, obtain one or Buyer more seven year prepaid “tail policy” or policies in lieu of the current policies of directors’ and officers’ liability insurance maintained by the Company applicable from and after the Effective Time to the acts and omissions of directors and officers of the Company up to and including the Effective Time and providing the same coverage and amounts and terms and conditions as such current policies (collectively, the “D&O Tail Policy”). Parent shall not take any of their respective Subsidiaries action to terminate the D&O Replacement Policy or the D&O Tail Policy during such seven-year period, and any of their respective successors insurance obtained by Parent or assigns (ithe Surviving Corporation pursuant to this Section 5.10(c) consolidates with or merges into any other person and shall not result in gaps in coverage. If such D&O Tail Policy is obtained, Parent shall not be obligated to obtain the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4D&O Replacement Policy.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (Zoran Corp \De\)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to From and after the extent required by law (i) Buyer will not take any action (including Effective Time, the exercise Surviving Company shall indemnify and hold harmless, and provide advancement of voting rights in connection with the Ilijan Entities) so as to amendexpenses to, modify or repeal the provisions for indemnification all past and present directors and officers of any present GFI and former employee, agent, anyone who becomes a director or officer of GFI during the Company and its Subsidiaries period from the date of this Agreement through the Closing Date (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, in all of their capacities) (the “Indemnified PartiesPersons”) contained for all acts and omissions occurring at or prior to the Effective Time to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by GFI pursuant to GFI’s Constituent Documents and indemnification agreements, if any, in existence on the Organizational date hereof with any Indemnified Persons. CME shall cause the Constituent Documents of the CompanySurviving Corporation and the Surviving Company to contain provisions with respect to indemnification, its Subsidiaries advancement of expenses and limitation of director and officer liability that are no less favorable to the Indemnified Persons with respect to acts or omission occurring at or prior to the Ilijan EntitiesEffective Time than those set forth in the Constituent Documents of GFI as of the date of this Agreement, which provisions thereafter shall not be amended, repealed or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to Persons. From and after the ClosingEffective Time, without the prior written consent of each affected Indemnified Party, CME shall guarantee and (ii) Buyer shall honorstand surety for, and shall cause the Surviving Company and its Subsidiaries to honor, andin accordance with their respective terms, to each of the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification covenants contained in the Organizational Documents and terms of any indemnification agreementsthis Section 6.8.
(b) For a period of six (6) years after Prior to the Closing Date, Buyer GFI shall, or if GFI is unable to, CME shall cause to be maintained in effect the Surviving Company as of or following the Effective Time to, purchase a six year prepaid “tail” policy on the current policies of directors’ and officers’, employed lawyers’ liability insurance to a minimum limit of US$50 million and fiduciary liability insurance maintained by GFI with respect to claims arising from or related to facts or events that occurred at on or before the ClosingEffective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions) (“D & O Insurance”); provided that GFI shall not pay, and the Surviving Company shall not be required to pay, for such “tail” policy more than 300% of the current annual premium paid by GFI for such D & O Insurance. If such D & O Insurance has been obtained by GFI prior to the Effective Time, CME shall cause such D & O Insurance to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Company. If GFI or the Surviving Company shall for any reason fail to obtain such “tail” policy, the Surviving Company or CME shall maintain for a period of six years after the Effective Time such D & O Insurance (provided that the Surviving Company or CME (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured); provided that in no event shall the Surviving Company or CME be required to pay in any one year more than 300% of the current annual premium paid by GFI for such D & O Insurance; provided, further, that if the annual premiums of such D & O Insurance exceed such amount, the Surviving Company or CME shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) In the event that, after the Closing DateIf CME, the Surviving Company or Buyer or any of its or their respective Subsidiaries or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or other entity of such consolidation or merger or (ii) transfers shall transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions shall be made so that the successors and assigns of CME or the Surviving Company, its Subsidiaries or Buyer, as the case may be, shall assume all of the obligations set forth in this Section 5.46.8.
(d) The provisions obligations of CME, the Surviving Company and any successors thereto under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 6.8 applies without the consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 6.8 applies shall be third party beneficiaries of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives6.8).
Appears in 1 contract
Samples: Merger Agreement (GFI Group Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to For six years after the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honorEffective Time Anthem shall, and shall cause the Company Surviving Entity to, (i) indemnify and hold harmless the present and former directors, officers and employees of Cigna and its Subsidiaries to honor(the “Indemnified Persons”) for any costs and expenses, andjudgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such Indemnified Person is or was an officer, director or employee of Cigna or its Subsidiaries in respect of acts or omissions occurring at or prior to the extent reasonably possibleEffective Time (including those related to this Agreement and the transactions contemplated hereby), and shall exercise advance expenses in respect thereof (provided, that an Indemnified Person shall repay Anthem or the votingSurviving Entity for any expenses incurred by Anthem or the Surviving Entity in connection with the indemnification of such Indemnified Person pursuant to this Section 5.6 if and when a court of competent jurisdiction shall ultimately determine, governance and contractual powers available such determination shall have become final, that such Indemnified Person did not meet the standard of conduct necessary for indemnification by Anthem or the Surviving Entity as set forth in Cigna’s certificate of incorporation, bylaws or indemnification agreements, if any, in existence on the date hereof (or the corresponding organizational documents of any Subsidiary of Cigna, as applicable)), in each case to the Company same extent such Persons are indemnified or have the right to advancement of expenses as of the date hereof by Cigna pursuant to Cigna’s certificate of incorporation, bylaws and its Subsidiaries to cause indemnification agreements, if any, in existence on the Ilijan Entities to honor, such provisions for indemnification contained in date hereof (or the Organizational Documents and terms corresponding organizational documents of any indemnification agreements.
Subsidiary of Cigna, as applicable) and (bii) For purchase as of the Effective Time a period “tail” policy to the current policy of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance maintained by Cigna, which tail policy shall be reasonably acceptable to Cigna and shall be effective for a minimum limit of US$50 million period from the Effective Time through and including the date six years after the Closing Date with respect to claims arising from or related to facts or events that occurred at on or before the Closing.
Effective Time, and which tail policy shall contain substantially the same coverage and amounts as, and contain substantially the same terms and conditions as, the coverage currently provided by such current policy; provided, however, that in no event shall Anthem be required to expend, for the entire tail policy, in excess of 450% of the annual premium currently paid by Cigna for its current policy of directors’ and officers’ liability insurance as set forth on Section 5.6(a) of the Cigna Disclosure Letter (c) In the event “Maximum Amount”); and, provided, further that, after if the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity premium of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any personinsurance coverage exceeds the Maximum Amount, thenAnthem, and in either such caseafter consultation with Cigna, proper provisions shall be made so that obligated to obtain a policy with the successors and assigns of greatest coverage available for a cost not exceeding the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Maximum Amount.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (Anthem, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Merger Sub agree that all rights to indemnification, advancement of expenses, and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the extent required by law (i) Buyer will not take any action (including date hereof or who becomes prior to the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify Effective Time an officer or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, each an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained as provided in the Organizational Charter Documents of the Company, its Subsidiaries or in each case as in effect on the Ilijan Entitiesdate of this Agreement, or pursuant to any other Contracts in effect on the terms date hereof and disclosed in Section 5.07 of any indemnification agreementsthe Company Disclosure Letter, shall be assumed by the Surviving Corporation in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the ClosingMerger, without further action, at the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, Effective Time and shall cause survive the Company Merger and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance remain in full force and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained effect in the Organizational Documents and terms of any indemnification agreementsaccordance with their terms.
(b) For a period of six years from the Effective Time, the Parent and Surviving Corporation (6the “Indemnifying Parties”) years after shall indemnify, defend and hold harmless each Indemnified Party (in all their capacities) against all losses, claims, damages, liabilities, fees, expenses, judgments and fines incurred in connection with any claim, suit, action or proceeding, whether civil, criminal, administrative, or investigative (each a “Claim”) and shall provide advancement of reasonable and documented expenses (including reasonable attorneys’ fees) to each Indemnified Party to the Closing Datesame extent such Indemnified Party has the right to such indemnification and advancement of expenses pursuant to the Charter Documents of the Company as in effect on the date of this Agreement and to the extent that such Indemnified Party does not have such a right to advancement of expenses, Buyer the Indemnifying Parties shall promptly reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such Claim as such expenses are incurred, subject to the receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law.
(c) The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to: (i) obtain as of the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to be maintained the Indemnified Parties, in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million each case with respect to claims arising from out of or related relating to facts events which occurred before or events at the Effective Time (including in connection with the transactions contemplated by this Agreement); provided, however, that occurred in no event will the Surviving Corporation be required to expend an annual premium for such coverage in excess of three hundred percent of the last annual premium paid by the Company or any of its Subsidiaries for such insurance prior to the date of this Agreement, which amount is set forth in Section 5.07(b) of the Company Disclosure Letter (the “Maximum Premium”). If such insurance coverage cannot be obtained at an annual premium equal to or before less than the ClosingMaximum Premium, the Surviving Corporation will obtain, and Parent will cause the Surviving Corporation to obtain, the greatest coverage available for a cost not exceeding an annual premium equal to the Maximum Premium.
(cd) The obligations of Parent, Merger Sub, and the Surviving Corporation under this Section 5.07 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.07 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.07 applies shall be third party beneficiaries of this Section 5.07, each of whom may enforce the provisions of this Section 5.07).
(e) In the event that, after the Closing DateParent, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns assigns: (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger merger; or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, proper provisions provision shall be made so that the successors and assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.4.
(d) 5.07. The provisions agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract, or otherwise. Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors, and employees, it being understood and agreed that the indemnification provided for in this Section 5.4 are intended to be for the benefit of5.07 is not prior to, and shall be enforceable byor in substitution for, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesany such claims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Torotel Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action (including Effective Time existing at the exercise date of voting rights this Agreement in connection with favor of the Ilijan Entities) so as to amend, modify current or repeal the provisions for indemnification of any present and former employee, agent, director directors or officer officers of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified PartiesPerson”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving acting in such capacities prior as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company or its Subsidiaries as in effect on the date of this Agreement (to the Closingextent that copies have been made available to Parent) shall be assumed by the Surviving Corporation in the Merger, without further action, at the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honorEffective Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and Parent shall cause the Company Surviving Corporation to comply with and its Subsidiaries honor the foregoing obligations; provided, that such obligations shall be subject to honorany limitation imposed from time to time under applicable Law. Notwithstanding the foregoing, and, in no event shall the Surviving Corporation be obligated to the extent reasonably possible, shall exercise the voting, governance and contractual powers available provide indemnification to the Company and its Subsidiaries any Indemnified Person with respect to cause the Ilijan Entities any matter for which any Parent Indemnified Party is entitled to honor, such provisions for indemnification contained in the Organizational Documents and terms under Article VIII of any indemnification agreementsthis Agreement.
(b) For a Prior to the Effective Time, the Company may purchase an extended reporting period of six (6) years after endorsement under the Closing Date, Buyer shall cause to be maintained in effect Company’s existing directors’ and officers’ liability insurance coverage (the “D&O Tail”) for the Company’s directors and officers in a form mutually acceptable to the Company and Parent which will provide such directors and officers with coverage for six years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors’ and officers’ liability insurance coverage presently maintained by the Company. In addition, the Company will use commercially reasonable efforts to purchase, prior to the Effective Time, extended reporting period endorsements (the “Tail”) for (x) other insurance coverages which are written on a minimum limit “claims made” basis, including employment practices liability and fiduciary liability insurance, with coverage for six years following the Effective Time, and (y) errors and omissions / professional liability coverage, with coverage for three years following the Effective Time. The cost of US$50 million with respect to claims arising from or related to facts or events that occurred at or before any D&O Tail shall be borne by the ClosingSecurityholders and if paid by the Company shall be included in the Seller Expenses for all purposes of this Agreement.
(c) In If the event that, after the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, to the extent necessary, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume the applicable obligations set forth in this Section 5.45.04.
(d) The provisions rights of each Indemnified Person under this Section 5.4 5.04 shall survive consummation of the Merger and are intended to be for the benefit ofbenefit, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesPerson.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) From and after the Closing Date and until the fourth anniversary of the Closing Date and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated, the Purchaser shall, and shall cause the Company and the Company's Subsidiaries to, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, a director or officer of the Company or any of its Subsidiaries (the "Indemnified Parties") against (i) all losses, claims, damages, costs and expenses (including reasonable attorneys' fees), liabilities, judgments and settlement amounts that are paid or incurred in connection with any claim, action, suit, proceeding or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Closing Date) that is based on, or arises out of, the fact that such Indemnified Party is or was a director or officer or agent of the Company or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Closing Date ("Indemnified Liabilities"), and (ii) all Indemnified Liabilities based on, or arising out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest extent a corporation is permitted under applicable law to indemnify its own directors or officers, as the case may be; provided that the Purchaser or the Company, as the case may be, shall not be liable for any settlement of any claim effected without its written consent. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising prior to or after the Closing Date), each of the parties agrees that (w) the Purchaser will or shall cause the Company to pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by applicable law; provided that the person to whom expenses are advanced provides any undertaking required by applicable law to repay such advance if it is ultimately determined that such person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Purchaser; (y) the Purchaser shall or shall cause the Company to pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to the final sentence of this paragraph) promptly as statements therefor are received; and (z) the Purchaser shall or shall cause the Company to use all commercially reasonable efforts to assist in the defense of any such matter. Any Indemnified Party wishing to claim indemnification under this Section, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Purchaser, but the failure so to notify the Purchaser shall not relieve the Purchaser from any liability which it may have under this paragraph except to the extent such failure materially prejudices the Purchaser. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties in which case, the Indemnified Parties may retain more than one law firm.
(b) Except to the extent required by law (i) Buyer law, until the fourth anniversary of the Closing Date, Purchaser will not take and shall cause the Company not to take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify modify, limit or repeal the provisions for indemnification of any present and former employee, agent, director Indemnified Parties contained in the certificates or officer articles of incorporation or bylaws (or other comparable charter documents) of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents which as of the Company, Closing Date shall be no more favorable to such individuals than those maintained by the Company and its Subsidiaries or on the Ilijan Entities, or the terms of any indemnification agreements, date hereof) in such a manner as would adversely affect the rights of any Indemnified Parties Party to be indemnified by such corporations in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsClosing Date.
(bc) For a period of six (6) four years after the Closing Date, Buyer Purchaser shall cause the Company to be maintained maintain in effect policies of directors’ ' and officers’ ' liability insurance to a minimum limit maintained by Company as of US$50 million the date hereof; provided that there may be substituted therefor policies of at least the same coverage containing terms that are no less advantageous with respect to claims arising from or related matters occurring prior to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, Date to the extent such liability insurance can be maintained annually at a cost to the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns greater than 300 percent of the Companycurrent annual premiums for such directors' and officers' liability insurance, its Subsidiaries or Buyer, as the case may be, shall assume the obligations which existing premium costs are set forth in this Section 5.46.04(c) of the Selling Shareholder Disclosure Schedule; provided, further, that if such insurance cannot be so maintained or obtained at such cost, the Surviving Corporation shall maintain or obtain as much of such insurance as can be so maintained or obtained at a cost equal to 300 percent of the current annual premiums of Company for its directors' and officers' liability insurance.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyParty and each party entitled to insurance coverage under paragraph (c) above, his or her heirsrespectively, executors or administrators and his or her heirs and legal representatives, and shall be in addition to, and shall not impair, any other representativesrights an Indemnified Party may have under the certificate or articles of incorporation or bylaws of the Company or any of its Subsidiaries, under the Business Corporation Act of the State of Texas or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) By virtue of the occurrence of the Integrated Mergers, EQBK and Equity Bank shall, from and after the Effective Time, succeed to Prairie’s and the Bank’s obligations with respect to indemnification or exculpation now existing in favor of the directors, officers, employees and agents of Prairie and the Bank, respectively, as provided in their articles of incorporation, Bylaws, indemnification agreements or otherwise in effect as of the date of this Agreement with respect to matters occurring prior to the Effective Time (collectively, the “Existing Indemnification Obligation”). EQBK hereby guaranties Prairie’s indemnification obligations.
(b) Except to the extent required prohibited by law applicable Law, following the Effective Time and for a period of three (i3) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendyears thereafter, modify or repeal the provisions for indemnification of any present and former employeeEQBK shall indemnify, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Partydefend, and (ii) Buyer shall honorhold harmless any Person who has rights to indemnification from the Bank or Prairie, and shall cause under the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsExisting Indemnification Obligation.
(bc) For Prior to Closing, EQBK and Equity Bank shall obtain, at the expense of EQBK, a period of six (6) years after year tail insurance coverage policy relating to the Closing Date, Buyer shall cause to be maintained in effect policies of directors’ and officers’ liability insurance to a minimum limit currently maintained by Prairie and the Bank as of US$50 million the date hereof with respect to claims arising from or related to facts or events that occurred at on or before prior to the ClosingEffective Time (including the transactions contemplated hereby) as currently maintained by Prairie (“Tail Policy”), on terms no less advantageous than those contained in Prairie’s existing directors’ and officers’ and company’s liability insurance policy; provided, however, that EQBK shall not be obligated to expend, on an annual basis, an amount in excess of 200% of the current annual premium paid as of the date hereof by Prairie for such insurance.
(cd) In the event that, after the Closing Date, the Company If EQBK or Buyer Equity Bank or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and or assets to any personPerson, then, and in either each such case, proper provisions to the extent necessary, provision shall be made so that the successors and assigns of the Company, its Subsidiaries EQBK or Buyer, as the case may be, shall Equity Bank expressly assume the obligations set forth in this Section 5.46.13.
(de) The provisions of this Section 5.4 6.13 are intended to be for the benefit of, and shall be enforceable by, in addition each Person who is now, or has been at any time prior to Sellersthe date of this Agreement or who becomes prior to the Effective Time, each an officer or director of Prairie or the Bank (the “Indemnified Party, his or her heirs, executors or administrators Parties”) and his or her heirs and representatives and are in addition to, and not in substitution for, any other representativesrights 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) Except Parent and Merger Sub agree that all rights to exculpation and indemnification (and all rights to advancement of expenses relating thereto) for acts or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including the exercise of voting rights any matters arising in connection with the Ilijan Entities) so transactions contemplated by this Agreement, including the Merger), now existing in favor of the D&O Indemnitees as to amend, modify or repeal provided in the provisions for indemnification of any present and former employee, agent, director or officer Governing Documents of the Company (or the Governing Documents of any of the Company’s Subsidiaries or Affiliates as in effect on the date of this Agreement) or in any Contract shall survive the Merger and its Subsidiaries shall continue in full force and effect. From and after the Effective Time, Parent and the Surviving Company shall (eachand Parent shall cause the Surviving Company to) indemnify, together defend and hold harmless, and advance expenses to, D&O Indemnitees with respect to any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, Liabilities and amounts paid in settlement in connection with any claim or Action, whether civil, criminal, administrative or investigative, to the extent such person’s heirsclaim or Action arises out of or pertains to (i) any act or omission by the D&O Indemnitees in their capacities as such at any time at or prior to the Effective Time or (ii) the Merger, executors or administratorsthis Agreement and any transactions contemplated hereby, an “Indemnified Party” andin either case, collectively, to the “Indemnified Parties”fullest extent permitted by (A) contained in the Organizational Governing Documents of the Company (or the Governing Documents of any of the Company’s Subsidiaries or Affiliates as in effect on the date of this Agreement), (B) any indemnification agreement of the Company or its Subsidiaries or other applicable Contract as in effect on the Ilijan Entitiesdate of this Agreement, which provisions thereafter shall not be amended, repealed or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and D&O Indemnitees or (iiC) Buyer shall honor, and applicable Law. Parent shall cause the Governing Documents of the Surviving Company and its Subsidiaries to honorcontain provisions with respect to indemnification, andadvancement of expenses and limitation of director, officer and employee liability that are no less favorable to the extent reasonably possible, shall exercise D&O Indemnitees than those set forth in the voting, governance and contractual powers available to Governing Documents of the Company and its the Governing Documents of the Company’s Subsidiaries to cause as of the Ilijan Entities to honordate of this Agreement, such which provisions for indemnification contained thereafter shall not be amended, repealed or otherwise modified in any manner that would adversely affect the Organizational Documents and terms rights thereunder of any indemnification agreementsD&O Indemnitees.
(b) For Prior to the Effective Time, the Company shall obtain a period non-cancelable extension of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance to policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case, for a minimum limit claims reporting or discovery period of US$50 million at least seven (7) years from and after the Effective Time with respect to claims arising from or any claim related to facts or events that occurred any period of time at or before prior to the ClosingEffective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies. The costs payable in connection with the D&O Insurance shall constitute a Company Expense. Parent shall cause the D&O Insurance to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Company.
(c) In the event that, after the Closing DateIf Parent, the Surviving Company or Buyer or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of Parent or the Surviving Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.46.10.
(d) The D&O Indemnitees to whom this Section 6.10 applies shall be third party beneficiaries of this Section 6.10. The provisions of this Section 5.4 6.10 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, of each Indemnified Party, his or her heirs, executors or administrators D&O Indemnitee and his or her successors, heirs or representatives. Parent shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any D&O Indemnitee in enforcing the indemnity and other representativesobligations provided in this Section 6.10.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except 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 extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer obligations of the Company and its Subsidiaries under their respective certificates of incorporation and bylaws (eachand other similar organizational documents) and all agreements for indemnification, together with such person’s heirsexculpation of liability or advancement of expenses, executors in effect as of the date hereof between the Company or administratorsany of its Subsidiaries and any of their respective current or former directors, an “Indemnified Party” andofficers, collectivelyemployees and agents or any person who becomes a director, officer, employee or agent prior to the Effective Time (the “Indemnified Parties”). For six (6) contained in years after the Organizational Documents Effective Time, Parent shall cause the certificate of incorporation and bylaws of the Company, Surviving Corporation and its Subsidiaries or the Ilijan Entitiesto contain provisions no less favorable with respect to indemnification, or the terms advancement of any indemnification agreementsexpenses and exculpation of present and former directors, in such a manner as would adversely affect the rights officers, employees and agents of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to than are presently set forth in the extent reasonably possible, shall exercise the voting, governance certificate of incorporation and contractual powers available to bylaws of the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsSubsidiaries.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent and the Surviving Corporation shall cause to be maintained 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 a minimum limit of US$50 million the Effective Time, covering each person covered by the D&O Insurance immediately prior to the Effective Time, on terms with respect to claims arising from or related to facts or events 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 occurred the Surviving Corporation may, at or before the Closing.
(c) In the event thatits option, after the Closing Datesubstitute therefor policies of Parent, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries containing terms (including with respect to limits, coverage, amount) no less favorable to such persons than the D&O Insurance, provided further, however, that in satisfying its obligations under this Section 6.13(b), Parent and the Surviving Corporation shall not be obligated to pay annual premiums in excess of three hundred percent (300%) of the amount paid by the Company for coverage for its last full fiscal year (such three hundred percent (300%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be 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 a per annum 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 containing terms and conditions (including with respect to limits, coverage, amount) no less favorable to each person covered by the D&O insurance immediately prior to the Effective Time, 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 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 respective successors 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 assigns the Surviving Corporation (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 a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, then proper provisions provision shall be made so that the successors and assigns such continuing or surviving corporation or entity or transferee of the Company, its Subsidiaries or Buyersuch assets, as the case may be, shall assume the obligations set forth in this Section 5.4.
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) The provisions of (and their heirs and representatives)) under this Section 5.4 are intended to 6.13 shall be for the benefit ofin addition to, and shall be enforceable bynot in substitution for, any other rights that such 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 the Company or any of its Subsidiaries, or Applicable Law (whether at law or in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesequity).
Appears in 1 contract
Samples: Merger Agreement (Microsemi Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Radiant agrees that all rights to indemnification (and advancement of expenses) and all rights with respect to the extent required by law elimination or limitation of liability now existing in favor of all persons (ihereinafter referred to as “Covered Persons”) Buyer will who at any time (x) prior to the Closing Date were directors or officers of Radiant, and (y) after the Closing Date, were directors, officers or employees of Enterprise, provided in Radiant’s Articles of Incorporation and Bylaws and under any indemnification agreement or other contract listed in Schedule 2.13 attached hereto, as in effect as of the Closing Date, with respect to matters occurring at or prior to the Closing Date, shall survive after the Closing Date and shall continue in full force and effect for a period of six years after the Closing Date. During such period, Radiant shall not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, repeal or otherwise modify or repeal the such provisions for indemnification (and advancement of expenses) and elimination or limitation of liability in any present manner that would materially and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights thereunder of any Indemnified Parties to be indemnified Covered Persons in respect of their serving in such capacities actions or omissions occurring at or prior to the ClosingClose of the Separation Date (including, without limitation, the transactions contemplated by the Exchange Agreement), without the prior written consent of Enterprise, which consent shall not be unreasonably withheld or delayed, unless such modification is required by law; provided, however, that in the event any claim or claims are asserted or made either prior to the Closing Date or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims. Without limiting the foregoing, from and after the Closing Date, Radiant shall indemnify, defend and hold harmless each affected Indemnified PartyCovered Person from and against any and all Liabilities of the Covered Persons relating to, arising out of or resulting from any claim of a current or former shareholder of Radiant against any of the Covered Persons made in connection with or related to the execution and delivery of the Exchange Agreement or any of the Related Agreements, or consummation of the Separation and the Exchange, whether asserted or claimed prior to, at or after the Closing Date, and shall pay each Covered Person any expenses, as incurred, in advance of the final disposition of any action relating to such claims; provided, however, that the Covered Persons shall not be entitled to such indemnity if a court of competent jurisdiction issues a final, nonappealable Order (as such term is defined in the Exchange Agreement) that (x) Gxxxx did not provide the Special Committee with the “required disclosure” (as such term is defined in Section 14-2-860(4) of the Georgia Business Corporation Code) to the extent such information was not known by any member thereof, and (iiy) Buyer shall honor, the Separation and shall cause the Company and its Subsidiaries to honor, and, Exchange are not entitled to the extent reasonably possible, shall exercise protections afforded by Section 14-2-861(b) of the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsGeorgia Business Corporation Code.
(b) For Radiant shall maintain, on a primary, non-contributory basis, for a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers,’ liability errors and omissions, professional liability, employment practices, fiduciary, ERISA, and/or any other insurance to (including all primary, umbrella and excess coverages) that provides coverage on a minimum limit claims made basis if (but only if) such coverage is now provided on this basis (in at least the same amounts and on terms no less advantageous than the coverage currently provided under such policies) for events or in respect of US$50 million with respect to claims arising from actions or related to facts or events that occurred omissions occurring at or before the Closing.
(c) In the event that, after prior to the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Date for Covered Persons.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to For five (5) years after the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendAcceptance Time, modify or repeal the provisions for indemnification of any present Parent and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and Purchaser shall cause the Company and its Subsidiaries and successors to honor, and, to honor and fulfill in all respects the extent reasonably possible, shall exercise the voting, governance and contractual powers available to obligations of the Company and its Subsidiaries under any and all indemnification agreements in effect as of the Agreement Date between the Company or any of its Subsidiaries and any of their respective current or former directors and officers and any Person who becomes a director or officer of the Company or any of its Subsidiaries prior to cause the Ilijan Entities Acceptance Time (the “Indemnified Parties”) with respect to honoractions taken by such Person in his or her capacity as a director or officer of the Company or its Subsidiary; provided, such provisions for indemnification contained however, that in the Organizational Documents and terms event any claim or claims are asserted or made within such period, all rights to indemnification in respect of any indemnification agreementssuch claim or claims shall continue until disposition of any and all such claims.
(b) For a period of six five (65) years after the Closing DateAcceptance Time, Buyer Parent and the Company shall cause to be maintained 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 a minimum limit of US$50 million the Acceptance Time, covering each person covered by the D&O Insurance immediately prior to the Acceptance Time, on terms with respect to claims arising from the coverage, retention, limitations of liability and amounts no less favorable, in the aggregate, than those of the D&O Insurance in effect on the Agreement Date and with an insurance company with the same or related to facts or events better credit rating as the insurance company providing the current D&O Insurance; provided, however, that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company may, at its option, (i) substitute therefor policies of Parent or Buyer Purchaser or any of their respective Subsidiaries containing terms with respect to coverage, retention, limitations of liability and amounts no less favorable, in the aggregate, to such persons than the D&O Insurance or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance program (to be effective as of the Acceptance Time); provided further, however, that in satisfying its obligations under this Section 6.9(b), none of Parent, Purchaser or the Company shall be obligated to pay annual premiums in excess of two hundred fifty percent (250%) of the annual premium for coverage under the D&O Insurance in effect at the Agreement Date (such two hundred fifty percent (250%) amount, the “Maximum Annual Premium”); provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent, Purchaser and the 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 Acceptance Time, notwithstanding anything to the contrary set forth in this Agreement, Parent, Purchaser or the Company may purchase a five-year “tail” prepaid policy on the D&O Insurance containing terms with respect to coverage, retention, limitations of liability and amounts no less favorable, in the aggregate, than the D&O Insurance in effect on the Agreement Date and with an insurance company with the same or better credit rating as the insurance company providing the current D&O Insurance. In the event that Parent, Purchaser or the Company purchases such a “tail” policy prior to the Acceptance Time, Parent, Purchaser and the Company, as applicable, shall maintain such “tail” policy in full force and effect through such five-year period, in lieu of all other obligations of Parent, Purchaser and the Company under the first sentence of this Section 6.9(b) for so long as such “tail” policy shall be maintained in full force and effect.
(c) If Purchaser or the Company or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Company shall assume all of the obligations of Parent, Purchaser and the Company set forth in this Section 5.46.9.
(d) The provisions of obligations under this Section 5.4 6.9 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 the D&O Insurance or the “tail” policy referred to in Section 6.9(b) 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 D&O Insurance or the “tail” policy referred to in Section 6.9(b) hereof (and their heirs and representatives).Each of the Indemnified Parties or other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 6.9(b) hereof are intended to be for third party beneficiaries of this Section 6.9, with full rights of enforcement as if a party thereto. The rights of the benefit ofIndemnified Parties (and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 6.9(b) hereof (and their heirs and representatives)) under this Section 6.9 shall be in addition to, and shall be enforceable bynot in substitution for, any other rights that such 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 the Company or any of its Subsidiaries, or applicable Law (whether at law or in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesequity).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Acquisition Sub agree that all rights to exculpation, indemnification, contribution and advancement of expenses for facts, events acts or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including the exercise of voting rights any matters arising in connection with the Ilijan Entitiestransactions contemplated hereby), now existing in favor of the current or former directors, officers or employees of (or in a comparable role with) so as to amendthe Company or its Subsidiaries, modify or repeal any person serving at the provisions for indemnification of any present and former employee, agent, director or officer request of the Company or any of its Subsidiaries as a director, officer or employee of (or in a comparable role with) another Person (the "D&O Indemnified Parties"), as the case may be, shall survive the Merger and shall continue in full force and effect in accordance with their terms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent shall and shall cause the Surviving Corporation and its Subsidiaries to perform such obligations thereunder. Parent shall cause the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to exculpation, indemnification, advancement of expenses and limitation of director, officer and employee (each, together with such person’s heirs, executors or administrators, an “comparable) liability that are no less favorable to the D&O Indemnified Party” and, collectively, the “Indemnified Parties”) contained Parties than those set forth in the Organizational Documents Company's and its Subsidiaries' organizational documents as of the CompanyClosing Date, its Subsidiaries which provisions thereafter shall not, for a period of at least six years from the Effective Time, be amended, repealed or the Ilijan Entities, or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any the D&O Indemnified Parties.
(b) Without limiting the foregoing, Parent shall (and Parent shall cause the Surviving Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, the D&O Indemnified Parties with respect to be indemnified all facts, events, acts or omissions by them in respect of their serving in capacities as such capacities at any time prior to and including the ClosingEffective Time (including any matters arising in connection with this Agreement or the transactions contemplated hereby), without to the prior written consent of each affected Indemnified Party, fullest extent that the Company or its Subsidiaries would be permitted by applicable Law; and (ii) Buyer pay in advance of the final disposition of any Action against any D&O Indemnified Party the expenses (including reasonable attorneys' fees) of any D&O Indemnified Party upon receipt, if required by the DGCL, the Surviving Corporation's organizational documents or any applicable indemnification agreement, of a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined that such D&O Indemnified Party is not permitted to be indemnified under applicable Law. Notwithstanding anything to the contrary contained in this Section 6.7(b) or elsewhere in this Agreement, Parent shall honornot (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Action, unless such settlement, compromise, consent or termination includes an unconditional release of all of the D&O Indemnified Parties covered by the Action from all liability arising out of such Action.
(c) For at least six years after the Effective Time, (i) Parent shall, and shall cause the Company Surviving Corporation and its other Subsidiaries to honorto, andmaintain in full force and effect the coverage provided by the existing directors' and officers' liability insurance, to employment practices liability insurance and fiduciary liability insurance in effect as of the extent reasonably possibleClosing Date and maintained by the Company or any of its Subsidiaries, shall exercise as applicable (the voting"Existing D&O Insurance Policies"), governance and contractual powers available to or provide substitute policies (with insurance carriers having an A.M. Best financial strength rating of least an "A") for the Company and its Subsidiaries the D&O Indemnified Parties who are currently covered by such Existing D&O Insurance Policies, in either case, with limits and on terms and conditions no less advantageous to cause the Ilijan Entities to honorD&O Indemnified Parties than the Existing D&O Insurance Policies, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to covering claims arising from facts, events, acts or related to facts or events omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby and (ii) Parent shall not, and shall not permit the Surviving Corporation or its other Subsidiaries to, take any action that would prejudice the rights of, or otherwise impede recovery by, the beneficiaries of any such insurance, whether in respect of claims arising before or after the ClosingEffective Time. In lieu of such insurance, prior to the Effective Time, the Company may purchase prepaid, non-cancellable six year "tail" directors' and officers' liability insurance, employment practices liability insurance and fiduciary liability insurance ("Tail Coverage"), effective as of the Effective Time, with limits and on terms and conditions no less advantageous to the D&O Indemnified Parties than the Existing D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the transactions contemplated hereby (provided, that Parent shall not be required to expend for such "tail" insurance an aggregate premium in excess of 300% of the aggregate annual premium paid for the Existing D&O Insurance Policies (the "Maximum Amount"); provided, further that if such insurance is not available or the annual premium for such insurance exceeds the Maximum Amount, then Parent shall obtain the best coverage available for a cost not exceeding the Maximum Amount), and Parent shall cause the Surviving Corporation (or its applicable Subsidiaries) to maintain such Tail Coverage in full force and effect, without any modification, and continue to honor the obligations thereunder, in which event Parent shall cease to have any obligations under the first sentence of this Section 6.7(c).
(cd) In the event that, after the Closing Datethat Parent, the Company or Buyer or Surviving Corporation, any of their respective the Company's Subsidiaries or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge or amalgamate into any other person Person and shall not be the continuing or surviving company or entity of such consolidation consolidation, merger or merger amalgamation or (ii) transfers transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, Parent shall cause proper provisions shall provision to be made so that the successors successor and assigns assign of Parent, the CompanySurviving Corporation, any such Subsidiary or all or substantially all of its Subsidiaries or Buyertheir properties and assets, as the case may be, shall assume assumes the obligations set forth in this Section 5.46.7.
(de) The D&O Indemnified Parties are third-party beneficiaries of this Section 6.7. The provisions of this Section 5.4 6.7 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each D&O Indemnified Party, his or her heirs, executors or administrators Party and his or her successors, heirs or Representatives. Parent and the Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys' fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other representativesrights under this Section 6.7. The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other applicable rights such D&O Indemnified Party may have under the respective organizational documents of the Company or any of its Subsidiaries or the Surviving Corporation, any other indemnification arrangement, applicable Law or otherwise.
(f) Notwithstanding anything herein to the contrary, if any claim (whether arising before, at or after the Closing) is made against any of the D&O Indemnified Parties on or prior to the sixth anniversary of the Closing Date, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except All rights to indemnification, advancement of expenses and exculpation by the extent required by law (i) Buyer will not take any action (including the exercise of voting rights Company now existing in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan EntitiesPerson who is now, or the terms of has been at any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities time prior to the Closing, without an officer, director or manager of the Company, or serves or has served at any time prior written consent to the Closing, as a director, officer, manager, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company (but for the avoidance of doubt, not the Seller or its Affiliates) (the “Indemnified Persons”) for their acts and omissions occurring at or prior to the Closing, as provided in the organizational documents of the Company, in each affected case as in effect on the date of this Agreement, or pursuant to any other agreements providing for indemnification of such Indemnified PartyPersons as in effect on the date hereof and set forth on Schedule 2.9(j), will survive the Closing and will continue in full force and effect in accordance with their respective terms. All such rights and entitlements shall be observed by the Buyer and the Company to the fullest extent available under Law for a period of six (6) years from the Closing Date, and any claim made requesting indemnification or advancement of expenses pursuant to such rights within such six (ii6) year period shall continue to be subject to this Section 5.8(a) and the rights provided under this Section 5.8 until disposition of such claim. From the Closing Date until the sixth anniversary of the Closing Date, the Buyer shall honor, and shall cause the organizational documents of the Company to contain provisions no less favorable with respect to indemnification, advancement of expenses and its Subsidiaries to honorexculpation of individuals who were, and, at or prior to the extent reasonably possibleClosing Date, shall exercise the votingIndemnified Persons, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained than are presently set forth in the Organizational Documents and terms organizational documents of any indemnification agreementsthe Company, as in effect on the date hereof.
(b) For Prior to the Closing, the Company shall purchase a “tail” directors’ and officers’ liability insurance policy, for claims arising from facts or events that occurred on or before the Closing Date covering Persons who are currently covered by such insurance, including the Indemnified Persons, with the coverage limit set forth on Schedule 5.8(b) and for a premium not in excess of the amount set forth on Schedule 5.8(b), for a period of at least six (6) years after the Closing Date, the cost of which shall be borne by the Buyer shall cause (except to be maintained the extent included in effect directors’ and officers’ liability insurance to a minimum limit the definition of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the ClosingSeller’s Expenses hereunder).
(c) The provisions of this Section 5.8 are intended to be for the benefit of, and enforceable by, each Indemnified Person and such Indemnified Person’s estate, heirs and personal representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or such Indemnified Person’s estate, heirs or personal representatives may have under the organizational documents of the Company, any Law, any contract or otherwise. The obligations of the Buyer and the Company under this Section 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Person, unless (i) such termination or modification is required by applicable Law, or (ii) the affected Indemnified Person shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnified Persons to whom this Section 5.8 relates shall be third party beneficiaries of this Section 5.8).
(d) The obligations of the Buyer under this Section 5.8 shall continue in full force and effect for a period commencing as of the Closing and ending on the six (6) year anniversary of the Closing Date; provided that, all rights to indemnification in respect of any claim for indemnification under this Section 5.8 asserted or made within such period shall continue until the final disposition of such claim.
(e) In the event that, after the Closing DateBuyer, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger merger, or (ii) transfers all or a substantial portion substantially all of its properties and or assets to any personPerson, then, and in either such case, proper provisions provision shall be made so that the successors and assigns of the Buyer or the Company, its Subsidiaries or Buyer, as the case may be, shall assume all of the obligations set forth in this Section 5.45.8.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Buyer and Merger Sub agree that all rights to indemnification, reimbursement, contribution, advancement of expenses or exculpation now existing in favor of, and all limitations on the extent required by law (i) Buyer will not take any action (including the exercise personal liability of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any each present and former director, officer, employee, agentfiduciary, director or officer agent of the Company Seller and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained and all other covered persons provided for in the Organizational Documents respective organizational documents, in effect as of the Companydate hereof, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties shall continue to be indemnified honored and in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, full force and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions effect for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing DateEffective Time (and if any statute is amended to provide for benefits that are more favourable to such Persons, then such Persons shall be entitled to the benefits of such amendment); provided, however, that all rights to indemnification, reimbursement, contribution, advancement of expenses or exculpation in respect of any claims asserted or made within such period shall continue until the disposition of such claim. During such period, Buyer shall cause not directly or indirectly through the Surviving Corporation or otherwise, amend, repeal or otherwise modify such provisions for indemnification, reimbursement, contribution, advancement of expenses or exculpation in any manner that would adversely affect the rights thereunder of individuals who at any time at or prior to the Effective Time was a director, officer, employee, fiduciary, or agent of Seller and its Subsidiaries or any other covered person in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law. In addition, from and after the Effective Time, Buyer and Surviving Corporation shall indemnify and hold harmless the present and former officers and directors of Seller and its Subsidiaries and all other covered persons pursuant to, and otherwise comply with, the terms of the written indemnification agreements between Seller and/or one or more of its Subsidiaries and such officers and directors and listed in Section 6.7 of the Seller Disclosure Schedule.
(b) The certificates of incorporation, bylaws or other organizational documents of the Surviving Corporation and each of its Subsidiaries shall contain the provisions with respect to indemnification, reimbursement, advancement of expenses, contribution and exculpation from liability set forth in the Seller’s Certificate of Incorporation and the Seller’s Bylaws or other organizational documents or such Subsidiary’s organizational documents, as the case may be, on the date of this Agreement, which provisions shall not be maintained amended, repealed or otherwise modified for a period of six years after the Closing in effect any manner that would adversely affect the rights thereunder of any covered person, except as required by Law (and if any statute is amended to provide for benefits that are more favourable to the covered persons, then each covered person shall be entitled to the benefits of such amendment).
(c) At or prior to the Effective Time, Seller shall purchase a “tail” directors’ and officers’ liability insurance policy (which by its terms shall survive the Merger) for its directors and officers, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable on the whole to, the insured persons than the directors’ and officers’ liability insurance coverage presently maintained by Seller. Buyer shall, and shall cause the Surviving Corporation to, maintain such policy in full force and effect, and continue to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before honor the Closingobligations thereunder.
(cd) In If Buyer, Merger Sub or the event thatSurviving Corporation merges into, after consolidates with or transfers all or substantially all of its assets to another Person or liquidates, dissolves or winds up its operations, then and in each such case, Buyer, Merger Sub and/or the Closing DateSurviving Corporation, as the case may be, shall make proper provision so that the surviving or resulting entity or the transferee in such transaction assumes the obligations of Buyer, Merger Sub and/or the Surviving Corporation under this Section 6.7.
(e) The obligations under this Section 6.7 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.7 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 6.7 applies shall be third party beneficiaries of this Section 6.7 and shall be entitled to enforce the covenants contained herein).
(f) Notwithstanding anything herein to the contrary, the Company obligations of Buyer and the Surviving Corporation or its successor pursuant to this Section 6.7 (i) shall be subject to any express limitation imposed by applicable law and (ii) shall not be deemed to release any Seller Stockholder from his or her obligations as an Indemnifying Party pursuant to this Agreement, nor shall such Seller Stockholder have any right of contribution, indemnification, or advancement or reimbursement of expenses from the Surviving Corporation or its successor or Buyer or any of their respective Subsidiaries or with respect to any Damages claimed by any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of Buyer Indemnified Parties against such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and Seller Stockholder in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativescapacity as an Indemnifying Party pursuant to Article IX of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ansys Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Buyer and the Acquired Companies agree that, to the maximum extent required permitted by law applicable Law, (i) Buyer will not take any action (including the exercise all rights to indemnification, advancement of voting rights in connection with the Ilijan Entities) so as to amend, modify expenses and exculpation from liability for acts or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities omissions occurring prior to the ClosingClosing Date now existing in favor of the current or former directors, without officers or employees of the prior written consent Acquired Companies, including as may be provided in the certificates of each affected Indemnified Partyincorporation, bylaws and other constituent documents of the Acquired Companies, or in any agreements between the Acquired Companies and any current or former directors, officers or employees of the Acquired Companies, will survive the Closing and will continue in full force and effect in accordance with their respective terms for a period of not less than six (6) years after the Closing Date (or, in the case of any agreement, in accordance with its terms), (ii) Buyer all rights to indemnification, advancement of expenses and exculpation from liability for acts or omissions occurring prior to the Closing Date now existing in favor of the current or former managers, directors, officers or employees of the Acquired Companies shall honor, be presently vested contractual rights and shall cause the Company not hereafter be eliminated or limited in any way whatsoever and its Subsidiaries (iii) with respect to honor, and, any right to indemnification or advancement of expenses for acts or omissions occurring prior to the extent reasonably possibleClosing Date, the Acquired Companies shall exercise be the votingindemnitors of first resort, governance and contractual powers available responsible for all such indemnification or advancement, without regard to any right to indemnification or advancement that any manager, director, officer or employee of the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of Acquired Companies may have from any indemnification agreementsother Person.
(b) For As of the Closing, Buyer shall purchase, or cause the Acquired Companies to purchase, “tail” coverage for a period of six (6) years after following the Closing DateDate under the directors and officers liability insurance policies of the Acquired Companies, Buyer shall cause to be maintained as in effect directors’ on the date of this Agreement (the “Tail D&O Policy”), with coverage (including terms, conditions, retentions and officers’ liability insurance to a minimum limit limitations of US$50 million with respect to claims arising from or related to facts or events that occurred liability) at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, least as favorable as the case may be, coverage under the existing Acquired Companies’ policies. This Section 4.7 shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellersthe current or former directors, each Indemnified Partyofficers and employees of the Acquired Companies, his or her and their respective heirs, executors or executors, administrators and his or her other representativesestates.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) From and after the Closing Date and until the fourth anniversary of the Closing Date and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated, the Purchaser shall, and shall cause the Company and the Company’s Subsidiaries to, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, a director or officer of the Company or any of its Subsidiaries (the “Indemnified Parties”) against (i) all losses, claims, damages, costs and expenses (including reasonable attorneys’ fees), liabilities, judgments and settlement amounts that are paid or incurred in connection with any claim, action, suit, proceeding or investigation (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Closing Date) that is based on, or arises out of, the fact that such Indemnified Party is or was a director or officer or agent of the Company or any of its Subsidiaries and relates to or arises out of any action or omission occurring at or prior to the Closing Date (“Indemnified Liabilities”), and (ii) all Indemnified Liabilities based on, or arising out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest extent a corporation is permitted under applicable law to indemnify its own directors or officers, as the case may be; provided that the Purchaser or the Company, as the case may be, shall not be liable for any settlement of any claim effected without its written consent. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising prior to or after the Closing Date), each of the parties agrees that (w) the Purchaser will or shall cause the Company to pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by applicable law; provided that the person to whom expenses are advanced provides any undertaking required by applicable law to repay such advance if it is ultimately determined that such person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Purchaser; (y) the Purchaser shall or shall cause the Company to pay all reasonable fees and expenses of such counsel for the Indemnified Parties (subject to the final sentence of this paragraph) promptly as statements therefor are received; and (z) the Purchaser shall or shall cause the Company to use all commercially reasonable efforts to assist in the defense of any such matter. Any Indemnified Party wishing to claim indemnification under this Section, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Purchaser, but the failure so to notify the Purchaser shall not relieve the Purchaser from any liability which it may have under this paragraph except to the extent such failure materially prejudices the Purchaser. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties in which case, the Indemnified Parties may retain more than one law firm.
(b) Except to the extent required by law (i) Buyer law, until the fourth anniversary of the Closing Date, Purchaser will not take and shall cause the Company not to take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify modify, limit or repeal the provisions for indemnification of any present and former employee, agent, director Indemnified Parties contained in the certificates or officer articles of incorporation or bylaws (or other comparable charter documents) of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents which as of the Company, Closing Date shall be no more favorable to such individuals than those maintained by the Company and its Subsidiaries or on the Ilijan Entities, or the terms of any indemnification agreements, date hereof) in such a manner as would adversely affect the rights of any Indemnified Parties Party to be indemnified by such corporations in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsClosing Date.
(bc) For a period of six (6) four years after the Closing Date, Buyer Purchaser shall cause the Company to be maintained maintain in effect policies of directors’ and officers’ liability insurance to a minimum limit maintained by Company as of US$50 million the date hereof; provided that there may be substituted therefor policies of at least the same coverage containing terms that are no less advantageous with respect to claims arising from or related matters occurring prior to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, Date to the extent such liability insurance can be maintained annually at a cost to the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns greater than 300 percent of the Companycurrent annual premiums for such directors’ and officers’ liability insurance, its Subsidiaries or Buyer, as the case may be, shall assume the obligations which existing premium costs are set forth in this Section 5.46.04(c) of the Selling Shareholder Disclosure Schedule; provided, further, that if such insurance cannot be so maintained or obtained at such cost, the Surviving Corporation shall maintain or obtain as much of such insurance as can be so maintained or obtained at a cost equal to 300 percent of the current annual premiums of Company for its directors’ and officers’ liability insurance.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyParty and each party entitled to insurance coverage under paragraph (c) above, his or her heirsrespectively, executors or administrators and his or her heirs and legal representatives, and shall be in addition to, and shall not impair, any other representativesrights an Indemnified Party may have under the certificate or articles of incorporation or bylaws of the Company or any of its Subsidiaries, under the Business Corporation Act of the State of Texas or otherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except All rights to exculpation, indemnification and advancement of expenses relating to acts or omissions at or prior to the extent required by law (i) Buyer will not take Effective Time existing in favor of any action Person who is or was at any time at or prior to the Effective Time a director (including the exercise of voting rights in connection with the Ilijan Entities) so a capacity as to amend, modify or repeal the provisions for indemnification a member of any present committee), officer, employee or agent (including as a fiduciary with respect to any employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (together with their respective heirs, executors, successors and former employeeassigns, agent, director or officer the “Indemnified Persons”) as provided in the Constituent Documents of the Company and its Subsidiaries (eachSubsidiaries, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained each as in the Organizational Documents effect as of the Company, its Subsidiaries or the Ilijan Entitiesdate of this Agreement, or the terms of in any indemnification agreementsor other agreement between an Indemnified Person and the Company or any of its Subsidiaries, in such a manner as would adversely affect will survive the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, Merger and (ii) Buyer shall honor, and shall Parent will cause the Company Surviving Corporation to fulfill and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, honor all such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsrights.
(b) For a period of six (6) years after from the Closing DateEffective Time, Buyer shall Parent and the Surviving Corporation will cause the provisions of all relevant Constituent Documents and indemnification or other agreements relating to exculpation, indemnification and advancement of expenses to be maintained in effect without any amendment, repeal or other modification that would adversely affect any right thereunder of any Indemnified Person.
(c) From and after the Acceptance Time, in the event of any Proceeding arising in whole or part out of, based in whole or in part on or otherwise pertaining to (i) the fact that an Indemnified Person is or was a director (including in a capacity as a member of any committee), officer, employee or agent (including as a fiduciary with respect to any employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Contemplated Transactions, whether asserted before or after the Acceptance Time, Parent and the Surviving Corporation will, jointly and severally, indemnify, defend and hold harmless, as and to the fullest extent permitted by applicable Law, each Indemnified Person (whether or not a party to such Proceeding) against any and all losses, claims, damages, liabilities, judgments, fines, amounts paid in settlement and other costs and expenses, including reasonable attorney’s fees and expenses and other costs and expenses in advance of the final disposition of such Proceeding to each Indemnified Person to the fullest extent permitted by applicable Law subject to the receipt of any undertaking required by applicable Law, in connection with such Proceeding.
(d) Neither Parent nor the Surviving Corporation will settle, compromise or consent to the entry of any judgment in any Proceeding in connection with which indemnification could be sought by any Indemnified Person pursuant to this Section 8.6 unless such settlement, compromise or consent includes an unconditional release and discharge of such Indemnified Person from all liability arising out of such Proceeding or such Indemnified Person otherwise consents in writing to such settlement, compromise or consent.
(e) Each of Parent and the Surviving Corporation will, at its own expense, cooperate with each Indemnified Person in connection with the defense of any matter for which such Indemnified Person could seek indemnification pursuant to this Section 8.6.
(f) The Company may obtain, at or prior to the Effective Time, prepaid or “tail” directors’ and officers’ liability and fiduciary risk insurance to a minimum limit of US$50 million policies with respect to claims arising from acts or related to facts or events that occurred omissions occurring at or before prior to the ClosingEffective Time (including acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Contemplated Transactions) for a period beginning at the Effective Time and ending six years after the Effective Time, covering each Indemnified Person on terms and conditions, including with respect to coverage amounts, deductibles and exclusions, that are, individually and in the aggregate, no less favorable to any Indemnified Person that those contained in such policies in effect as of the date of this Agreement. If such prepaid or “tail” insurance policies have been obtained by the Company, Parent will cause such policies to be maintained in full force and effect for their full term and will cause all obligations thereunder to be honored by it and the Surviving Corporation.
(cg) If the Company does not obtain such prepaid or “tail” insurance policies, then for a period beginning on the Effective Time and ending six years after the Effective Time, Parent will maintain in effect the Company’s current directors’ and officers’ liability and fiduciary risk insurance policies with respect to acts or omissions occurring at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Contemplated Transactions), covering each Indemnified Person on terms and conditions, including with respect to coverage amounts, deductibles and exclusions, that are, individually and in the aggregate, no less favorable to any Indemnified Person than those contained in such policies in effect as of the date of this Agreement; provided that in no event will Parent or the Surviving Corporation be required to expend for any one coverage year more than 300 percent of the current annual premium expended by the Company to maintain or procure such insurance policies 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, Parent and the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium.
(h) 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 Constituent Documents of the Company or any of its Subsidiaries or the Surviving Corporation, any other indemnification Contract, the DGCL or otherwise.
(i) The provisions of this Section 8.6 will survive the consummation of the Contemplated Transactions and expressly are intended to benefit, and are enforceable by, each of the Indemnified Persons. In the event that, after that the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their its respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such case, proper provisions shall provision will be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall Surviving Corporation will assume and comply with the obligations set forth in this Section 5.48.6.
(dj) The provisions obligations of the Surviving Corporation under this Section 8.6 will not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the consent of such Indemnified Person, it being expressly agreed that the Indemnified Persons will be third party beneficiaries of this Section 5.4 are intended to be for the benefit of8.6. Parent will honor, guaranty and stand as a surety for, and shall be enforceable bywill cause the Surviving Corporation and its Subsidiaries and successors to honor and comply with, in addition to Sellersaccordance with their respective terms, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesof the covenants contained in this Section 8.6 without limit as to time.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to indemnify and hold harmless each Indemnified Person against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or any of its Subsidiaries, as the case may be, would have been required under applicable Law and its respective certificate of incorporation, bylaws or other organizational documents in effect on the date of this Agreement to indemnify such person (including promptly advancing expenses as incurred to the fullest extent required by law under applicable Law). Without limiting the foregoing, Parent shall cause the Surviving Corporation and each of its Subsidiaries to for a period of not less than six years from the Effective Time (i) Buyer will not take any action maintain provisions in its certificate of incorporation, bylaws or other organizational documents concerning the indemnification and exculpation (including provisions relating to expense advancement) of the exercise of voting rights in connection with Surviving Corporation’s and its Subsidiaries’ former and current officers, directors and employees that are no less favorable to the Ilijan Entities) so as to amend, modify or repeal Indemnified Persons than the provisions for indemnification of any present and former employeethe certificate of incorporation, agent, director bylaws or officer other organizational documents of the Company or such Subsidiary, as applicable, in each case, as of the date of this Agreement, and its Subsidiaries (eachii) not amend, together with repeal or otherwise modify such person’s heirsprovisions in any respect that would adversely affect the rights of those Indemnified Persons thereunder, executors or administratorsin each case, an “Indemnified Party” andexcept as required by Law.
(b) Prior to the Effective Time, the Company shall, and for six years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, provide officers’ and directors’ liability, fiduciary liability and similar insurance (collectively, the “Indemnified PartiesD&O Insurance”) contained 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 as well as covering claims brought against each Indemnified Person under ERISA; provided, that, in satisfying its obligation under this Section 7.05(b) the Surviving Corporation shall not be obligated to pay annual premiums in the Organizational Documents aggregate in excess of 300% of the Companyamount per annum the Company paid in its last full fiscal year, which amount the Company has disclosed to Parent prior to the date of this Agreement. Notwithstanding the foregoing, at any time the Surviving Corporation may, and prior to the Acceptance Time, the Company may, with the prior written consent of Parent (which shall not be unreasonably withheld, delayed or conditioned), purchase a “tail” directors’ and officers’ liability insurance policy, covering the same persons and providing the same terms with respect to coverage and premium amount as aforesaid, and that by its Subsidiaries terms shall provide coverage until the sixth annual anniversary of the Effective Time, and upon the purchase of such insurance the Surviving Corporation’s obligations pursuant to the first sentence of this Section 7.05(b) shall be deemed satisfied for so long as such insurance is in full force and effect and covers the matters that would otherwise be covered pursuant to this Section 7.05(b).
(c) The provisions of this Section 7.05 shall survive the acceptance of Company Shares for payment pursuant to the Offer and the consummation of the Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Persons and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. Unless required by applicable Law, this Section 7.05 may not be amended, altered or repealed after the Ilijan Entities, or the terms of any indemnification agreements, Acceptance Time in such a manner as would to adversely affect the rights of any Indemnified Parties to be indemnified in respect Person or any of their serving in such capacities prior to the Closingsuccessors, assigns or heirs without the prior written consent of each the affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsPerson.
(bd) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing DateIf Parent, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving the Surviving Corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, to the extent necessary, proper provisions provision shall be made so that the successors and assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.4Section 7.05.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (Resonant Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except All rights to indemnification, advancement of expenses and exculpation existing on the extent required by law (i) Buyer will not take any action (including the exercise date of voting rights this Agreement in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and or former employee, agent, director or officer of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained as provided in the Company Organizational Documents Documents, or any organizational documents of any of the Company’s Subsidiaries, or in agreements between an Indemnified Party and the Company or one of its Subsidiaries, or otherwise in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect after the Effective Time and the provisions in the Company Organizational Documents, any organizational documents of any of the Company’s Subsidiaries or the Ilijan Entitiesany such agreement providing for such indemnification advancement of expenses and exculpation shall not be amended, repealed or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and individual.
(iib) Buyer shall honorParent shall, and shall cause the Surviving Corporation to, indemnify all Indemnified Parties to the fullest extent permitted by applicable Laws with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Legal Action, whenever asserted, based on or arising out of, in whole or in part, (i) the fact that an Indemnified Party was a director or officer of the Company and or any of its Subsidiaries to honor, and, at or prior to the extent reasonably possible, shall exercise Effective Time or (ii) acts and omissions arising out of or relating to their services as directors or officers of the voting, governance and contractual powers available Company or its Subsidiaries occurring at or prior to the Company Effective Time. If any Indemnified Party is or becomes involved in any such Legal Action, Parent shall pay as incurred such Indemnified Party’s legal fees, costs and its Subsidiaries expenses incurred in connection with such Legal Action, subject to cause the Ilijan Entities Parent’s receipt of an undertaking by or on behalf of such Indemnified Party to honorrepay such legal fees, costs and expenses if it is ultimately determined under applicable Laws that such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsIndemnified Party is not entitled to be indemnified.
(bc) For a period of six (6) Parent shall, or shall cause the Surviving Corporation to, maintain in effect for at least seven years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time the current policies of directors’ and officers’ liability insurance maintained by the Company, or policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to a minimum limit the individuals covered by such policies than the terms of US$50 million with respect such policies in effect on the date hereof (“D&O Replacement Policy”), so long as Parent and the Surviving Corporation are not required to claims arising from pay an annual premium in excess of 200% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement (the dollar amount of such percentage being the “Maximum Premium”). If Parent is unable to obtain, or related unable to facts so cause to be obtained, the insurance described in the prior sentence for an amount less than or events equal to the Maximum Premium, it shall instead obtain, or cause the Surviving Corporation to obtain, as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Any insurance obtained by Parent or the Surviving Corporation pursuant to this Section 5.10(c) shall not result in gaps in coverage. The Company represents that occurred at or before the Closing.
(c) In Maximum Premium as of the event that, after date hereof is $1,407,692.98. Prior to the Closing DateEffective Time, the Company may, and after the Effective Time, Parent may, obtain one or Buyer more seven year prepaid “tail policy” or policies in lieu of the current policies of directors’ and officers’ liability insurance maintained by the Company applicable from and after the Effective Time to the acts and omissions of directors and officers of the Company up to and including the Effective Time and providing the same coverage and amounts and terms and conditions as such current policies (collectively, the “D&O Tail Policy”). Parent shall not take any of their respective Subsidiaries action to terminate the D&O Replacement Policy or the D&O Tail Policy during such seven-year period, and any of their respective successors insurance obtained by Parent or assigns (ithe Surviving Corporation pursuant to this Section 5.10(c) consolidates with or merges into any other person and shall not result in gaps in coverage. If such D&O Tail Policy is obtained, Parent shall not be obligated to obtain the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4D&O Replacement Policy.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Commencing at the Effective Time, Parent, the Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to), to the extent required fullest extended permitted by law applicable Law, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under (i) Buyer will not take the indemnification agreements set forth on Section 6.8(a) of the Company Disclosure Letter between (A) the Company and its Subsidiaries and any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify their respective current or repeal the provisions for indemnification of former directors and officers and any present and former employee, agent, person who becomes a director or officer of the Company and or any of its Subsidiaries and (eachB) the Company or any corporation, together with such person’s heirspartnership, executors joint venture, trust, pension or administratorsother employee benefit plan or enterprise and any Person serving or who served as a director, an “Indemnified Party” andofficer, collectivelymember, manager, partner, trustee or other fiduciary of any of the foregoing at the request of the Company or any of its Subsidiaries, in each case, for acts or omissions arising prior to the Effective Time (the “Indemnified PartiesPersons”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party), and (ii) Buyer indemnification, expense advancement and exculpation provisions in the certificate of incorporation or bylaws of the Company and in the certificate of incorporation or bylaws (or equivalent governing documents) of any of the Company’s Subsidiaries, in each case as in effect on the date of this Agreement. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Corporation and its Subsidiaries shall honor(and Parent shall cause the Surviving Corporation and its Subsidiaries to) cause the certificates of incorporation and bylaws of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are no less favorable to the Indemnified Persons than the indemnification, exculpation and advancement of expenses provisions contained in the certificates of incorporation and bylaws of the Company and its Subsidiaries as of the date hereof, and during such six (6) year period, such provisions shall not be repealed, amended or otherwise modified (whether by merger, consolidation, division, conversion, domestication, transfer, continuance, share exchange, operation of law, or otherwise) in any manner adverse to the Indemnified Persons except as provided below.
(b) Without limiting the generality of the provisions of Section 6.8(a), during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law, Parent, the Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) indemnify and hold harmless each Indemnified Person from and against any costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, Liabilities and amounts paid in settlement of or in connection with any threatened or actual action, suit, claim, proceeding, investigation, arbitration or inquiry, whether civil, criminal, administrative or investigative (each an “Indemnified Proceeding”), to the extent such Indemnified Proceeding arises directly or indirectly out of or pertains or relates directly or indirectly to (i) any action or omission or alleged action or omission in such Indemnified Person’s capacity as (or the fact that such Indemnified Person is or was) a director, officer, employee or agent of the Company or other controlled Affiliates (including as a fiduciary with respect to any employment benefit plan) or by reason of the fact that such Indemnified Person is or was serving as a director, officer, employee or agent of the Company or its controlled Affiliates or at the request of the Company and its Subsidiaries as such (including as a fiduciary with respect to any employee benefit plan) of another Person (regardless, in each case, of whether such action or omission, or alleged action or omission, occurred prior to or at the Effective Time), (ii) any of the transactions contemplated by this Agreement or (iii) the enforcement of any of the rights of such Indemnified Person (or his or her heirs or legal representatives) under this Section 6.8, provided that if, at any time prior to the sixth (6th) anniversary of the Effective Time, any Indemnified Person delivers to the Surviving Corporation or any of its Subsidiaries a written notice of any prospective, threatened or actual Indemnified Proceeding for which indemnification or advancement may be sought under this Section 6.8(b), then the obligations of Parent, the Surviving Corporation and its Subsidiaries under this Section 6.8 shall survive the sixth (6th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, to the fullest extent permitted by applicable Law, Parent, the Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) advance, prior to the final disposition of any Indemnified Proceeding for which indemnification may be sought under this Agreement, promptly following a request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such Indemnified Proceeding upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification therefor hereunder.
(c) During the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, Parent shall, and shall cause the Company Surviving Corporation to, maintain for the benefit of the directors and its Subsidiaries to honorofficers of the Company, andas of the date of this Agreement and as of the Effective Time, an insurance and indemnification policy that provides coverage for events occurring prior to the extent reasonably possible, shall exercise Effective Time (the voting, governance “D&O Insurance”) that is substantially equivalent to and contractual powers available in any event providing coverage not less favorable to the insured persons than the policies of the Company in effect as of the date of this Agreement; provided that the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement, but in such case shall purchase coverage as favorable to the insured persons as is available for such amount. The provisions of the immediately preceding sentence shall be deemed to have been satisfied if prepaid policies (including a “tail” policy) have been obtained by the Company prior to the Effective Time. The Surviving Corporation shall (and its Subsidiaries to Parent shall cause the Ilijan Entities Surviving Corporation to) maintain the D&O Insurance “tail” policy in full force and effect and continue to honorhonor their respective obligations thereunder, such provisions for indemnification contained in during the Organizational Documents period commencing at the Effective Time and terms ending on the sixth (6th) anniversary of any indemnification agreementsthe Effective Time.
(bd) For Notwithstanding anything herein to the contrary, if any Indemnified Person notifies the Surviving Corporation on or prior to the sixth (6th) anniversary of the Effective Time that a period of six claim, action, suit, proceeding or investigation (6) years whether arising before, at or after the Closing DateEffective Time) has been made, Buyer brought or threatened against such Indemnified Person, the provisions of this Section 6.8 shall cause to be maintained continue in effect directors’ and officers’ liability insurance to a minimum limit until the final, non-appealable disposition of US$50 million with respect to claims arising from such claim, action, suit, proceeding or related to facts or events that occurred at or before the Closinginvestigation.
(ce) In the event that, after that Parent or the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation (or any of their respective successors or assigns assigns) (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or engages in any division transaction, or (ii) transfers transfers, conveys or otherwise disposes of all or a substantial portion substantially all of its properties and assets to any personPerson or effects any division transaction, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of Parent and the Company, its Subsidiaries or Buyer, as the case may be, Surviving Corporation shall assume all of the obligations thereof set forth in this Section 5.46.8.
(df) The provisions This Section 6.8 shall survive the consummation of this Section 5.4 are the Merger and is intended to be for the benefit ofbenefit, and from and after the Effective Time shall be enforceable by, the Indemnified Persons and their respective heirs and legal representatives, and shall not be amended, terminated or modified from and after the Effective Time in addition such a manner as to Sellersadversely affect any Indemnified Person without the written consent of such affected Indemnified Person. The rights provided under this Section 6.8 shall not be deemed to be exclusive of any other rights to which any Indemnified Person is entitled, each Indemnified Partywhether pursuant to Law, his Contract or her heirs, executors or administrators and his or her other representativesotherwise.
Appears in 1 contract
Samples: Merger Agreement (Cerevel Therapeutics Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except 8.6.1. The Buyer and the Acquired Companies agree that all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Ilijan Entities) so as to amendClosing Date, modify or repeal the provisions for indemnification that now exist in favor of any present and Person who prior to or on the Closing Date is or was a current or former director, officer or employee of an Acquired Company, or who at the request of an Acquired Company served prior to or on the Closing Date as a director, officer, member, manager, employee, agenttrustee or fiduciary of any other entity of any type (each a “D&O Indemnified Person”), director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained including as provided in the Organizational Documents of the an Acquired Company, its Subsidiaries will survive the Closing and will continue in full force and effect for the six (6) year period following the Closing Date. In furtherance (and not in limitation of) the foregoing, for the six (6) year period following the Closing Date, the Buyer will cause the Acquired Companies to, and the Acquired Companies will continue to contain in the Organizational Documents of each of the Acquired Companies provisions with respect to indemnification, advancement of expenses and exculpation from liability that in each such respect are at least as favorable to each D&O Indemnified Person as those contained in each Acquired Company’s respective Organizational Documents, as applicable, as in effect on the date hereof, which provisions will not be amended, repealed or the Ilijan Entities, or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any D&O Indemnified Parties Person.
8.6.2. In addition to be indemnified the other rights of each D&O Indemnified Person provided for in respect of their serving this Section 8.6 and not in such capacities prior to limitation thereof, from and after the Closing, without for the prior written consent of each affected Indemnified Partysix (6) year period following the Closing Date, and (ii) the Buyer shall honorshall, and shall cause the Company Acquired Companies to, (a) defend, indemnify and its Subsidiaries to honor, and, hold harmless (and release from any liability to the extent reasonably possibleBuyer or the Acquired Companies), shall exercise each D&O Indemnified Person against all losses, claims, damages, liabilities, awards, orders, decrees, rulings, judgments, fines, penalties, settlement agreements, amounts paid in settlement, costs, charges, expenses and fees (including attorneys’ and experts’ fees and expenses) based upon, arising out of, in respect of or in connection with any threatened, pending or completed claim, subpoena or other legal process, demand, action, arbitration, suit or proceeding, whether criminal, civil, administrative or investigative, based upon, arising out of, in respect of or in connection with any actual or claimed acts or omissions occurring at any time prior to or on the votingClosing Date (excluding any actual or claimed acts or omissions based upon, governance arising out of, in respect of or in connection with the negotiation or approval of this Agreement and contractual powers available to the Company and its Subsidiaries to cause consummation of the Ilijan Entities to honor, such provisions Transactions or a claim for indemnification contained in the Organizational Documents made pursuant to this Agreement) (each, a “D&O Indemnifiable Claim”) and terms of any indemnification agreements.
(b) For advance to such D&O Indemnified Persons all costs, charges, expenses and fees (including attorneys’ and experts’ fees and expenses) paid or incurred by a period D&O Indemnified Person in connection with any D&O Indemnifiable Claim, promptly following receipt of reasonable supporting documentation thereof. Any D&O Indemnifiable Claim, and any claim for advancement, in each case pending or asserted prior to or within the six (6) years after year period following the Closing Date shall continue to be covered by this Section 8.6 until the later of such time that such D&O Indemnifiable Claim is fully and finally disposed of with no further exposure of a D&O Indemnified Person of any kind or all settlement agreements, judgments, orders, awards, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully and finally satisfied.
8.6.3. On or before the Closing Date, the Company will obtain, and pay any premium payable with respect thereto, for the Acquired Companies, and, for a six (6) year period following the Closing Date, the Buyer shall will cause the Acquired Companies to be maintained maintain in effect effect, with no lapse in coverage, one or more “tail” or “runoff” directors’ and officers’ liability and employment practices liability insurance to a minimum limit policies covering actual or claimed acts or omissions of US$50 million with respect to claims arising from or related to facts or events that occurred at any D&O Indemnified Person occurring on or before the Closing.
(c) In the event that, after the Closing Date, in each case on terms with respect to coverage, retentions, amounts and other material terms at least as favorable to such D&O Indemnified Persons as those of such policies in effect on the date hereof.
8.6.4. If any Acquired Company or Buyer (or any of their respective Subsidiaries or any of their respective its successors or assigns assigns) (ia) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger Person, or (iib) transfers all or a substantial portion substantially all of its properties and assets to any personother Person (including by dissolution, liquidation, assignment for the benefit of creditors or similar action), then, and in either each such case, the Buyer will cause proper provisions shall provision to be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume such other Person fully assumes the obligations set forth in this Section 5.48.6.
(d) 8.6.5. The provisions of this Section 5.4 are intended to 8.6 shall survive the Closing. This Section 8.6 shall be for the irrevocable benefit of, and shall be enforceable by, in addition to Sellers, each D&O Indemnified Party, his or her heirs, executors or administrators Person and his or her respective heirs, executors, administrators, estates, successors and assigns, and each such Person shall be an express intended third party beneficiary of this Agreement for such purposes. Buyer shall pay, or shall cause the Acquired Companies to pay, as and when incurred by any Person referred to in the immediately preceding sentence, all reasonable fees, costs, charges, and expenses incurred by such Person in enforcing such Person’s rights under this Section 8.6. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 8.6 shall not be terminated, revoked, modified or amended in any way so as to adversely affect any Person referred to in the second sentence of this Section 8.6.5 without the written consent of such Person. With respect to any right to indemnification or advancement for actual or claimed acts or omissions occurring prior to or on the Closing Date, each Acquired Company, as applicable, shall be the indemnitor of first resort, responsible for all such indemnification and advancement that any D&O Indemnified Person may otherwise have rights to from any direct or indirect holder of Equity Interests of any of the Acquired Companies (or any Affiliate of such holder of Equity Interests). Each of the Acquired Companies and the Buyer further agrees that no advance or prepayment by any party other representativesthan the Acquired Companies as the primary indemnitor on behalf of any D&O Indemnified Person with respect to any claim for which such D&O Indemnified Person has sought indemnification from any of the Acquired Companies shall affect the foregoing and that any such secondary indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all the rights of recovery of the D&O Indemnified Person against the Acquired Companies and the Acquired Companies hereby irrevocably release any such secondary indemnitor from, and irrevocably waive and relinquish any right to assert against any such secondary indemnitor, any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. Each of the Acquired Companies, the Buyer and the D&O Indemnified Persons agree that the secondary indemnitors are express third party beneficiaries of this Section 8.6.5.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carlisle Companies Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present From and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to after the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honoragrees that, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after following the Closing Date, Buyer it shall cause to be maintained in effect directors’ indemnify and officers’ liability insurance to a minimum limit hold harmless each present and former director, manager, officer and employee of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer any of its Subsidiaries, as applicable, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Company or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or BuyerSubsidiaries, as the case may be, would have been permitted under applicable law and its respective articles of incorporation, articles of organization, operating agreement, bylaws or other organizational documents in effect on the date of this Agreement to indemnify such person (including promptly advancing expenses as incurred to the fullest extent permitted under applicable law); provided that, the applicable indemnified Person provides an undertaking to repay any such amounts to the extent such Person is found not to be entitled to such amounts pursuant to a final, non-appealable order of a court of competent jurisdiction or to the extent required by applicable law. For a period of six years after the Closing, Purchaser shall assume not, and shall not permit any member of the obligations set forth Company Group to, amend, repeal or modify (in this Section 5.4a manner adverse to the beneficiary thereof) any provision in any member of the Company Group’s articles of incorporation, articles of organization, operating agreement, bylaws or other organizational documents relating to the exculpation or indemnification of any officers or directors, it being the intent of the Parties hereto that the officers and directors of any member of the Company Group on the date hereof shall continue to be entitled to such exculpation and indemnification to the full extent of the law.
(db) Within 30 days of the Closing Date, Purchaser shall, at its sole cost and expense, purchase for any Person who is on the date hereof, an officer, manager or director of any member of the Company Group (each such Person, a “D&O Beneficiary”) a “tail” officers’ and directors’ liability insurance policy that provides coverage for six (6) years from and after the Closing Date (“D&O Insurance”) that is reasonably acceptable to the Sellers’ Representative (and a policy having terms, conditions, retentions and limits of liability that are at least as favorable in the aggregate relative to the coverage provided under the Company’s existing policies shall be deemed to be reasonably acceptable) with respect to all losses, claims, damages, liabilities, costs and expenses (including attorney’s fees and expenses), judgments, fines, losses, and amounts paid in settlement in connection with any actual or threatened Action (each a “D&O Claim”) to the extent that any such D&O Claim is based on, or arises out of, (a) the fact that such D&O Beneficiary is or was a manager, director or officer of any member of the Company Group at any time prior to the Closing Date or is or was serving at the request of any member of the Company Group as a manager, director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise at any time prior to the Closing Date or (b) this Agreement or any of the transactions contemplated hereby or thereby in each case to the extent that any such D&O Claim pertains to any matter or fact arising, existing or occurring prior to or at the Closing Date, regardless of whether such D&O Claim is asserted or claimed prior to, at or after the Closing Date. The provisions of this Section 5.4 6.8 are intended to be for the benefit of, and shall be enforceable by, each such D&O Beneficiary and such Person’s estate, heirs and representatives and are in addition to, and not in substitution for, any other rights to Sellersindemnification or contribution that any such Person may have pursuant to law, each Indemnified Partythe organizational documents of any member of the Company Group, his contract or her heirsotherwise. Purchaser shall indemnify, executors defend and hold harmless the D&O Beneficiaries for any Losses incurred by any D&O Beneficiary arising out of the failure of the D&O Insurance to be bound as of the time of Closing.
(c) Notwithstanding anything to the contrary, no Person shall have any rights with respect to advancement, indemnification, contribution or administrators other recovery of any kind from Purchaser or any member of the Company Group or any of their respective Affiliates or Subsidiaries for any matter which (i) is a claim in connection with or arising under this Agreement or any other document, certificate or agreement referenced herein or executed or delivered in connection with the consummation of the transactions contemplated hereby or (ii) such Person may be liable to Purchaser, a member of the Company Group or their respective Affiliates or Subsidiaries based on, arising out of or relating to Fraud (including the costs and his or her other representativesexpenses of defending any claims with respect to such matter).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Purchaser agree that any rights to indemnification or exculpation now existing in favor of, and all limitations on the extent required by law (i) Buyer will not take any action (including the exercise personal liability of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any each present and former director, officer, employee, agent, director fiduciary or officer agent of the Company Seller and its Subsidiaries (the “Indemnified Parties” and, each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained provided for in the Organizational Documents respective organizational documents, in effect as of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Partydate hereof, and the indemnification agreements set forth in Section 7.5 of the Seller Disclosure Schedule shall continue in full force and effect (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries with respect to honor, and, to the extent reasonably possibleSeller, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained be reflected in the Organizational Documents and terms applicable organizational documents of any indemnification agreements.
(b) For such entity), for a period of six (6) years after the Closing Acceptance Date. During such period, Parent shall not, nor shall it permit the Surviving Corporation to, amend, repeal or otherwise modify such provisions for indemnification in any manner that would materially and adversely affect the rights thereunder of any individual who at any time on or prior to the Acceptance Date was a director, officer, employee, fiduciary or agent of Seller or its Subsidiaries in respect of actions or omissions occurring at or prior to the Acceptance Date (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by Law; provided, however, that in the event any claim or claims are asserted or made either prior to the Acceptance Date or within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims.
(b) Prior to the Acceptance Date, Buyer Seller shall, to the fullest extent permitted under applicable Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Acceptance Date until the sixth (6th) anniversary of the Acceptance Date , Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless, each present and former director or officer of Seller and each Subsidiary of Seller (collectively, the “Covered Parties”) against all costs and expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Acceptance Date), whether civil, administrative or investigative, arising out of or pertaining to any action or omission in their capacities as officers or directors, in each case occurring before the Acceptance Date (including the transactions contemplated by this Agreement). Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) Seller or Parent and the Surviving Corporation, as the case may be, shall cause be entitled to control the defense of such claim, action, suit, proceeding or investigation, (ii) if Seller, Parent or the Surviving Corporation (or counsel selected by the applicable insurer of Seller or the Surviving Corporation) does not elect to control the defense of such claim, action, suit, proceeding or investigation, the Covered Party shall be maintained entitled to select counsel for the Covered Party, which counsel shall be reasonably satisfactory to Seller or to Parent and the Surviving Corporation, as the case may be, and Seller or Parent and the Surviving Corporation shall pay the fees and expenses of such counsel promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action), (iii) the Covered Party shall cooperate in effect the defense of any such matter, and (iv) none of Seller, Parent or the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed).
(c) At or prior to the Acceptance Date, Seller shall purchase directors’ and officers’ liability insurance (which by its terms shall survive the Offer and the Merger) for its directors and officers, which shall provide such directors and officers with coverage for six (6) years following the Acceptance Date on terms acceptable to a minimum limit of US$50 million with respect Seller, so long as the aggregate cost is less than $1,000,000. Parent shall, and shall cause the Surviving Corporation to, maintain such policy in full force and effect, and continue to claims arising from or related to facts or events that occurred at or before honor the Closingobligations thereunder.
(cd) The obligations under this Section 7.5 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.5 applies without the consent of such affected indemnitee (it being expressly agreed that the indemnitees to whom this Section 7.5 applies shall be third party beneficiaries of this Section 7.5 and shall be entitled to enforce the covenants contained herein).
(e) In the event that, after Parent or the Closing Date, the Company or Buyer or any of their respective Subsidiaries Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personassets, then, and in either each such case, to the extent necessary, proper provisions provision shall be made so that the successors and assigns of Parent and the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.47.5.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (BMC Software Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to In the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification event of any present and former employeethreatened or actual claim, agentaction, director suit, proceeding or officer of the Company and its Subsidiaries investigation, whether civil, criminal or administrative (each, together with such person’s heirsa “Proceeding”), executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entitieswhich any Person who is now, or the terms of has been at any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities time prior to the Closing, without the prior written consent a manager, director, officer or Affiliate of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries (the “Indemnified Persons”) is, or is threatened to honorbe, andmade a party or witness thereto based in whole or in part on the fact that such Person is or was a manager, director, officer or Affiliate of the Company, whether in any case asserted or arising before, on or after the Closing Date, the Company shall, to the fullest extent reasonably possiblepermitted by law, shall exercise as provided by the votingCompany Charter Documents and existing indemnification agreements, governance indemnify and contractual powers available hold harmless such Indemnified Person from and against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses in advance of the final disposition of any Proceeding to each Indemnified Person to the fullest extent permitted by law, as provided by the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Charter Documents and terms of any existing indemnification agreements), judgments, fines and amounts paid in settlement incurred in connection with or arising out of such Proceeding.
(b) For An Indemnified Person shall notify the Company of the existence of a period Proceeding for which such Indemnified Person is entitled to indemnification hereunder as promptly as reasonably practicable after such Indemnified Person learns of six such Proceeding; provided, that the failure to so notify shall not affect the obligations of the Company under this Section 5.8 except to the extent such failure to notify actually prejudices the Company. The Indemnified Person and the Company shall cooperate fully with each other in connection with the defense of any Proceeding. No settlement of a Proceeding may be made by the Company without the Indemnified Person’s consent, except for a settlement which requires no more than a monetary payment for which the Indemnified Person is fully indemnified and which does not require the admission of liability.
(6c) years after the Closing DateThe Buyer shall, Buyer or shall cause to be maintained in effect the Company to, purchase a so-called “tail” policy for the Company’s existing directors’ and officers’ liability insurance to policy covering Persons who are currently covered by such insurance policy on terms no less favorable than those in effect on the date hereof for a minimum limit period of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, least six years after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 5.8 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyPerson and such Indemnified Person’s estate, his heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or her heirssuch Indemnified Person’s estate, executors heirs and representatives may have under the Company Charter Documents, any Legal Requirement, any contract or administrators otherwise.
(e) The obligations of the Company under this Section 5.8 shall continue in full force and his effect for a period commencing as of the Closing and ending as of the later of (i) the six year anniversary of the Closing and (ii) the date that all applicable statute of limitation periods have expired for any claim or her other representativesclaims for which an Indemnified Person may be entitled to indemnification under this Section 5.8; provided, that all rights to indemnification in respect of any claim for indemnification under this Section 5.8 asserted or made within such period shall continue until the final disposition of such claim.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Without limiting any rights that any manager, director, executive officer or employee of CV Advisor, CVRMC II or of their Affiliates may have under any indemnification agreement or the Organizational Documents of CV Advisor or CVRMC II or as otherwise afforded by applicable Law, all of which shall survive the Closing, anything to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contrary contained in any Transaction Document notwithstanding, or under the Organizational Documents of the Company, its Subsidiaries REIT or the Ilijan EntitiesOP, or the terms in addition to, and not in limitation of any indemnification agreementsother indemnity rights contained in any Transaction Document, from and after the Closing Date, the REIT and the OP shall, jointly and severally, indemnify and hold harmless the current or former managers, directors, officers or employees of CV Advisor and CVRMC II and their subsidiaries and Affiliates acting in their capacity as such, and Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx in their capacities as former directors of the REIT (collectively, the “D&O Indemnified Parties”) to the fullest extent authorized or permitted under the Organizational Documents of CV Advisor or CVRMC II for acts or omissions by such a manner as would adversely affect the rights of any D&O Indemnified Parties to be indemnified in respect of their serving in such capacities occurring prior to the ClosingClosing Date; provided, without however, that the prior written consent of each affected foregoing shall not apply to any Losses for which the D&O Indemnified PartyParties are liable pursuant to Section 5.02(d) (and the D&O Indemnified Parties shall be liable for any such Losses in accordance with the REIT Advisory Agreement, the REIT Property Management Agreements and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsSection 5.02(d)).
(b) For As of the Closing Date, the REIT or the OP shall have obtained a policy of directors’ and officers’ liability insurance, effective for a period of six (6) years after the Closing Date, Buyer shall cause reasonably satisfactory to be maintained in effect CVRMC II (the “D&O Tail Policy”) on terms not less favorable than the terms of the directors’ and officers’ liability insurance coverage obtained by the REIT as in effect immediately prior to a minimum limit of US$50 million the Closing Date with respect to the D&O Indemnified Parties, providing insurance coverage to the D&O Indemnified Parties in connection with the Business with respect to claims arising from from, or related to facts or events that which occurred at or before the Closing.
(c) In the event thatbefore, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions . The D&O Tail Policy Expenses shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth borne in this accordance with Section 5.42.03.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action (including Effective Time now existing in favor of the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify current or repeal the provisions for indemnification of any present and former employee, agent, director directors or officer officers of the Company and its the Transferred Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” andPerson”) acting in such capacities as provided in their respective Constituent Documents and any indemnification or other agreements of the Company or the Transferred Subsidiaries as in effect on the date of this Agreement (to the extent that copies have been made available to Parent prior to the date of this Agreement) shall be assumed by the Surviving Corporation in the Merger, collectivelywithout further action, at the Effective Time, and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and Parent shall cause the Surviving Corporation to comply with and honor the foregoing obligations; provided, that such obligations shall be subject to any limitation imposed from time to time under applicable Law. From and after the Effective Time, the “Indemnified Parties”) contained in Surviving Corporation shall not, and Parent shall cause the Organizational Documents of the CompanySurviving Corporation not to, its Subsidiaries or the Ilijan Entities, or the terms of take any indemnification agreements, in such a manner as steps that would reasonably be expected to affect materially and adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsPerson.
(b) For Subject to the following sentence, for a period of six (6) years after the Closing DateEffective Time, Buyer Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that Parent may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to a minimum limit of US$50 million the insured) with respect to claims against the present and former officers and directors of the Company or any of its Subsidiaries and claims against any of the present and former members of the Nominating Committee (as defined in the Shareholder Agreement), in each case arising from or related to facts or events that which occurred at or before the Closing.
Effective Time (c) including the transactions contemplated by this Agreement); provided, however, that Parent shall not be obligated to expend, on an annual basis, an amount in excess of 150% of the aggregate annual premium paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Parent shall cause to be maintained policies of insurance which, in Parent’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the event that, after the Closing Dateforegoing, the Company may in consultation with Parent (and at the request of Parent, the Company shall use its reasonable best efforts to) obtain at or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns prior to the Effective Time a six-year “tail” policy under the Company’s existing directors and officers insurance policy (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties six-year “tail” policy with a substantially comparable insurer) providing equivalent coverage to that described in the preceding sentence if and assets to any person, then, and in either such case, proper provisions shall be made so the extent that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case same may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be obtained for the benefit of, and shall be enforceable byan amount that, in addition to Sellersthe aggregate, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesdoes not exceed the Premium Cap.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Closing, in the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative (each, a “Proceeding”), in which any Person who is now, or has been at any time prior to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendClosing, modify or repeal the provisions for indemnification of any present and former employee, agent, a director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified PartiesPersons”) contained is, or is threatened to be, made a party or witness thereto based in whole or in part on the Organizational Documents fact that such Indemnified Person is or was a director or officer of the Company, its Subsidiaries and arising out of or the Ilijan Entitiesrelating to acts or omissions by such Indemnified Person in his capacity as such, which acts or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities omissions occurred at or prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, andshall, to the fullest extent reasonably possiblepermitted by law and the Company Charter Documents, shall exercise indemnify and hold harmless such Indemnified Person from and against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses in advance of the voting, governance and contractual powers available final disposition of any Proceeding to each Indemnified Person to the fullest extent permitted by law and the Company Charter Documents, provided that the Indemnified Person to whom attorneys’ fees and its Subsidiaries expenses are advanced or for which fees and expenses of counsel are paid provides an undertaking to cause the Ilijan Entities repay such advances and payments if it is ultimately determined by a determination of a Governmental Authority that is final that such Indemnified Person is not entitled to honorindemnification), judgments, fines and amounts paid in settlement incurred in connection with or arising out of such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsProceeding.
(b) For An Indemnified Person shall notify the Company of the existence of a period Proceeding for which such Indemnified Person is entitled to indemnification hereunder as promptly as reasonably practicable after such Indemnified Person learns of six such Proceeding; provided, that the failure to so notify shall not affect the obligations of the Company under this Section 5.8 except to the extent such failure to notify actually prejudices the Company. The Indemnified Person and the Company shall cooperate fully with each other in connection with the defense of any Proceeding. No settlement of a Proceeding may be made by the Company without the Indemnified Person’s consent, except for a settlement which requires no more than a monetary payment for which the Indemnified Person is fully indemnified and which does not require the admission of liability.
(6c) years after the Closing Date, Buyer The Seller shall cause the Company to be maintained in effect purchase a so-called “tail” for the Company’s existing directors’ and officers’ liability insurance, covering Persons who are currently covered by such insurance to on terms no less favorable than those in effect on the date hereof for a minimum limit period of US$50 million with respect to claims arising from or related to facts or events that occurred at or before least six years after the Closing, with the cost of such policy to be paid by the Buyer; provided, that to the extent the premium payable by the Buyer or the Company in respect of such “tail” policy exceeds $50,000, any such excess shall be reimbursed by the Seller promptly following receipt from the Buyer of such documentation as Seller may reasonable request relating to such excess.
(cd) In the event that, after the Closing DateCompany shall be obligated hereunder to provide indemnification for or make any advances with respect to the fees and expenses of any Proceeding, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and Indemnified Person shall not be have the continuing or surviving entity right to retain one counsel of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets Indemnified Person’s own choice to any personrepresent such Indemnified Person, then, and in either such case, proper provisions which counsel shall be made so that reasonably satisfactory to the successors Buyer; and assigns of such counsel shall, to the extent consistent with its professional responsibilities, reasonably cooperate with the Company and any counsel designated by the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(de) The provisions of this Section 5.4 5.8 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyPerson and such Indemnified Person’s estate, his heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or her heirssuch Indemnified Person’s estate, executors heirs and representatives may have under the Company Charter Documents, any Legal Requirement, any contract or administrators otherwise.
(f) The obligations of the Company under this Section 5.8 shall continue in full force and his effect for a period commencing as of the Closing and ending as of the later of
(i) the six year anniversary of the Closing and (ii) the date that all applicable statute of limitation periods have expired for any claim or her other representativesclaims for which an Indemnified Person may be entitled to indemnification under this Section 5.8; provided, that all rights to indemnification in respect of any claim for indemnification under this Section 5.8 asserted or made within such period shall continue until the final disposition of such claim.
Appears in 1 contract
Samples: Securities Purchase Agreement (TreeHouse Foods, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years from and after the Closing Date, Buyer Purchaser shall cause the Company and its Subsidiaries to be maintained continue all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions that have occurred or will occur at or prior to the Closing now existing in favor of the current or former directors and officers of the Company and any of its Subsidiaries as provided in the Organizational Documents of the Company and its Subsidiaries or any Contract between any of such directors or officers and the Company or any of its Subsidiaries (solely to the extent such Contracts have been provided to Purchaser prior to the date hereof), as applicable, in each case, as in effect on the date hereof.
(b) Prior to the Closing, the Company and its Subsidiaries shall, and, if the Company or any of its Subsidiaries is unable to, Purchaser shall cause the Company and any of its Subsidiaries, as applicable, as of the Closing to, obtain and fully pay for “tail” insurance policies with a claims reporting or discovery period of at least six (6) years from and after the Closing Date from an insurance carrier with the same or better credit rating as the Company’s and its Subsidiaries’ current insurance carriers (including coverage provided through Seller’s Affiliates) with respect to directors’ and officers’ liability insurance to a minimum limit and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of US$50 million coverage at least as favorable as the Company’s and its Subsidiaries’ existing policies (including coverage provided through Seller’s Affiliates) with respect to claims arising from matters existing or related to facts or events that occurred occurring at or before prior to the Closing (including in connection with this Agreement and the transactions and actions contemplated hereby). If the Company or any of its Subsidiaries for any reason fails to obtain such “tail” insurance policies as of the Closing, the Company and its Subsidiaries shall, and Purchaser shall cause the Company and its Subsidiaries to use reasonable best efforts to purchase comparable D&O Insurance for a period of at least six (6) years from and after the Closing Date with benefits and levels of coverage at least as favorable as provided in the Company’s and its Subsidiaries existing policies (including coverage provided through Seller’s Affiliates) as of the date of this Agreement; provided, however, that in no event shall Purchaser, the Company or any of the Company’s Subsidiaries be required to expend for such policies, or any “tail” insurance policy obtained pursuant to this Section 5.5(b), an annual premium amount in excess of $6 million.
(c) In the event that, after the Closing Date, that the Company or Buyer or any of their respective its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and or other assets to any personPerson, then, and in either each such case, Purchaser shall cause proper provisions shall provision to be made so that the successors and assigns of the Company, Company or any of its Subsidiaries or BuyerSubsidiaries, as the case may be, shall expressly assume the obligations set forth in this Section 5.45.5.
(d) The provisions of this Section 5.4 5.5 are intended to be for the benefit of, and shall will be enforceable by, in addition to Sellers, each Indemnified Partyindemnified party, his or her heirsheirs and representatives and are in addition to, executors and not in substitution for, any other rights to indemnification or administrators and his contribution that any such Person may have by Contract or her other representativesotherwise.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, in which any Person who is now, or has been at any time prior to the Closing, a director or officer of any Acquired Company (the “Indemnified D&O Parties”) is, or is threatened to be, made a party thereto based in whole or in part on the fact that such Person is or was a director or officer of an Acquired Company, whether in any case asserted or arising before, on or after the Closing (each, a “Proceeding”), the Surviving Corporation shall, to the fullest extent required permitted by law (i) Buyer will not take Law, indemnify and hold harmless such Person from and against such Proceeding as provided in this Section 8.6. Notwithstanding anything contained herein to the contrary, in no event shall the indemnification under this Section 8.6 in any action (including way limit any claim for Losses of the exercise of voting rights Parent Indemnitees arising under this Agreement or any agreement or document delivered in connection with the Ilijan Entitiestransactions contemplated hereby.
(b) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained The Surviving Corporation shall retain in the Organizational Documents of each of the Company, its Subsidiaries or the Ilijan Entities, or the terms of Acquired Companies any indemnification agreementsprovision or provisions, including provisions respecting the advancement of expenses, in effect on the Closing Date for the benefit of the Indemnified D&O Parties as of Closing, and shall not thereafter amend the same as it relates to such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior parties (except to the Closingextent that such amendment preserves or broadens the indemnification or other rights theretofore available to such Indemnified D&O Parties).
(c) After the Closing Date, without the prior written consent of each affected Indemnified Party, and (ii) Buyer Surviving Corporation shall honor, and shall cause the Company other Acquired Companies to indemnify and its Subsidiaries to honor, andhold harmless, to the fullest extent reasonably possiblepermitted by Law, shall exercise each Indemnified D&O Party from and against any and all Losses, (including reasonable attorney’s fees and expenses in advance of the voting, governance and contractual powers available final disposition of any Proceeding to each Indemnified D&O Party to the Company fullest extent permitted by Law), judgments, fines and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained amounts paid in the Organizational Documents and terms settlement incurred in connection with or arising out of any indemnification agreementsProceedings.
(bd) For An Indemnified D&O Party shall notify Parent of the existence of a period Proceeding for which such Indemnified D&O Party is entitled to indemnification hereunder as promptly as reasonably practicable after such Indemnified D&O Party learns of six such Proceeding; provided that the failure to so notify shall not affect the obligations under this Section 8.6 except to the extent such failure to notify actually prejudices Parent, the Surviving Corporation or another Acquired Company. The Indemnified D&O Party, Parent, the Surviving Corporation and the other Acquired Companies shall cooperate fully with each other in connection with the defense of any Proceeding. No settlement of a Proceeding may be made by Parent, the Surviving Corporation or the other Acquired Companies without the Indemnified D&O Party’s consent, which consent will not be unreasonably withheld, delayed or conditioned, except for a settlement which requires no more than a monetary payment for which the Indemnified D&O Party is fully indemnified. No settlement of a Proceeding may be made by an Indemnified D&O Party without the consent of Parent, the Surviving Corporation and the other Acquired Companies, which consent will not to be unreasonably withheld, delayed or conditioned.
(6e) years after On or prior to the Closing Date, Buyer the Company shall cause obtain a pre-paid policy or policies (i.e. “tail coverage”) to be maintained in effect directors’ and officers’ provide the Indemnified D&O Parties with liability insurance to a minimum limit coverage for an aggregate period of US$50 million not less than six years with respect to claims arising from or related to facts or events that occurred at on or before the Closing.
(c) In the event that, after the Closing Date, including with respect to the transactions contemplated by this Agreement, the form of which shall be reasonably satisfactory to Parent. On the Closing Date, Parent agrees to pay, as part of the Merger Consideration, an amount not to exceed One Hundred Fifty Thousand Dollars ($150,000) to offset the cost to the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns in obtaining such tail coverage (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4“Tail Insurance Amount”).
(df) The provisions of this Section 5.4 8.6 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified D&O Party and such Indemnified D&O Party’s estate, his administrators, executors, heirs and representatives, and nothing herein shall affect any indemnification rights that any such Person may have under any charter, bylaws, Contract, applicable law or her heirsotherwise. The obligations of the Surviving Corporation and the other Acquired Companies under this Section 8.6 shall continue in full force and effect for a period commencing as of the Closing and ending as of the sixth anniversary of the Closing Date; provided, executors that all rights to indemnification in respect of any claim for indemnification under this Section 8.6 asserted or administrators and his or her other representativesmade within such period shall continue until the final disposition of such claim.
Appears in 1 contract
Samples: Merger Agreement (Smucker J M Co)
Directors’ and Officers’ Indemnification and Insurance. (a) Except In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative (each, a “Proceeding”), in which any Person who is now, or has been at any time prior to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amendClosing, modify or repeal the provisions for indemnification of any present and former employee, agenta manager, director or officer of the Company and its Subsidiaries Entities (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified PartiesPersons”) contained is, or is threatened to be, made a party or witness thereto based in whole or in part on the Organizational Documents fact that such Person is or was a manager, director or officer of the Company, its Subsidiaries or the Ilijan Company Entities, whether in any case asserted or arising before, on or after the terms of any indemnification agreementsClosing Date, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, Entities to the fullest extent reasonably possiblepermitted by applicable Law, shall exercise indemnify and hold harmless such Indemnified Person from and against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses in advance of the voting, governance and contractual powers available final disposition of any Proceeding to each Indemnified Person to the Company fullest extent permitted by applicable Law), judgments, fines and its Subsidiaries to cause the Ilijan Entities to honor, amounts paid in settlement incurred in connection with or arising out of such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsProceeding.
(b) For a period of six (6) years after the Closing DateThe Buyer shall, Buyer or shall cause to be maintained in effect the Company Entities to, maintain the existing directors’ and officers’ liability insurance of the Company Entities (if any) or purchase a so‑called “tail” for such directors’ and officers’ liability insurance, in each case covering Persons who are currently covered by such insurance and Persons who prior to the Closing are directors or officers of the Company Entity but were not covered under the Seller’s or its Affiliates’ directors’ and officers’ liability insurance for a minimum limit period of US$50 million with respect at least six years after the Closing, on terms substantially similar to claims arising from or related to facts or events that occurred at or before those being taken out by a Company Entity for the period following the Closing.
(c) The provisions of this Section 5.8 are intended to be for the benefit of, and enforceable by, each Indemnified Person and such Indemnified Person’s estate, heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or such Indemnified Person’s estate, heirs and representatives may have under the organizational documents of the Company Entities, any Law, any contract or otherwise.
(d) The obligations of the Buyer under this Section 5.8 shall continue in full force and effect for a period commencing as of the Closing and ending as of the later of (i) the six year anniversary of the Closing Date and (ii) the date that all applicable statute of limitation periods have expired for any claim or claims for which an Indemnified Person may be entitled to indemnification under this Section 5.8; provided that all rights to indemnification in respect of any claim for indemnification under this Section 5.8 asserted or made within such period shall continue until the final disposition of such claim.
(e) In the event that, after the Closing DateBuyer, the Company or Buyer or any of their respective Subsidiaries Entities or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers transfer all or a substantial portion substantially all of its properties and or assets to any personPerson, then, and in either such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries Buyer or Buyerthe Company Entities, as the case may be, shall assume all of the obligations set forth in this Section 5.45.8.
(df) The provisions From and after the Closing, the Seller and its Affiliates shall use commercially reasonable efforts to ensure that the Companies Entities shall continue to benefit from and have recourse pursuant to those occurrence based insurance policies of the Seller or its Affiliates which existed as of or prior to the date of this Section 5.4 are intended Agreement and to be for which a Company Entity was a beneficiary, solely in respect of the period prior to the Closing and to the extent permissible under such policies. The Company Entities shall continue to benefit of, from and shall be enforceable byentitled to enforce their rights following the Closing under such insurance policies, solely in respect of the period prior to the Closing and to the extent permitted pursuant to such policies, in addition the same manner to Sellerswhich they are entitled as of the date of this Agreement, each Indemnified Partybut at the sole cost of the Seller, his whether or her heirsnot any claim, executors dispute, investigation or administrators and his otherwise was known or her other representativesunknown to a Company Entity as of the date of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ascena Retail Group, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, the Parent shall cause the Surviving Corporation to and the extent required by law (i) Buyer will not take any action (including Surviving Corporation shall indemnify, defend and hold harmless the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employeeofficers, agentdirectors, director employees and agents of the Company (each a "Covered Person") against all losses, expenses, claims, damages, liabilities or officer amounts ("Losses") that are paid in settlement (provided that such settlement has been approved by the Parent, such approval not to be unreasonably withheld) of, or otherwise in connection with, any claim, action, suit, proceeding or investigation (a "Claim"), based in whole or in part on the fact that such person is or was a director, officer, employee or agent of the Company and its Subsidiaries (each, together with such person’s heirs, executors arising out of actions or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries omissions occurring at or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the ClosingEffective Time (including, without limitation, the prior written consent of Transactions), in each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, case to the full extent reasonably possible, permitted under the MBCA and the Company's articles of incorporation and bylaws as in effect on the date of this Agreement. The Surviving Corporation shall exercise pay any expenses in advance of the voting, governance and contractual powers available final disposition of any such Claim to each Covered Person to the Company and its Subsidiaries fullest extent permitted under the MBCA upon receipt from the Covered Person to cause whom expenses are advanced of an undertaking to repay such advances required under the Ilijan Entities to honor, such provisions for indemnification contained MBCA. The Surviving Corporation shall cooperate in the Organizational Documents and terms defense of any indemnification agreementssuch matter.
(b) For a period of six years after the Closing Date (or in the event any Claim is asserted within such six year period, until final disposition of that Claim), the Parent shall cause the Surviving Corporation to keep in effect provisions in its articles of incorporation and bylaws providing for exculpation of director liability, advancing expenses prior to disposition of any Claim and its indemnification of the Covered Persons to the fullest extent permitted under the MBCA, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by law that would enlarge the right of indemnification of the Covered Persons.
(c) For a period of six (6) years after the Closing DateEffective Time, Buyer the Parent shall cause the Surviving Corporation to be maintained maintain in effect directors’ the current policies of directors and officers’ officers liability insurance to a minimum limit of US$50 million maintained by the Company covering persons who are currently covered by the Company's officers and directors liability insurance policies with respect to claims arising from actions or related to facts or events that occurred omissions occurring at or before prior to the Closing.
Effective Time to the extent that such policies are available; provided, that policies of at least the same coverage containing terms and conditions which are no less advantageous to the insureds may be substituted therefor, provided, further, that in no event shall the Surviving Corporation be required to expend amounts for premiums per annum in excess of 150% of the current annual premiums for the twelve-month period ending November 15, 1999 (cwhich premium the Company represents and warrants to be $107,500 in the aggregate for the policy year which began in November 1998) In (the event that"Maximum Premium") to maintain or procure insurance coverage pursuant to this Section 6.3, after or, if the Closing Datecost of such coverage exceeds the Maximum Premium, the Company or Buyer or any maximum amount of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not coverage that can be purchased for the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Maximum Premium.
(d) From and after the Effective Time, the Parent agrees to indemnify, defend and hold harmless the Covered Persons against all Losses that are paid in settlement (provided that such settlement has been approved by the Parent, such approval not to be unreasonably withheld) of, or otherwise in connection with, a Claim based in whole or in part on the fact that such Covered Person is or was a director or officer of the Company and arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the Transactions), in each case to the fullest extent permitted by applicable Law and whether or not the Surviving Corporation is permitted by applicable Law to provide any indemnity with respect to such Losses. The Parent shall pay any expenses in advance of the final disposition of any such Claim to each Covered Person to the fullest extent permitted by applicable Law upon receipt from the Covered Person to whom such expenses are advanced of an undertaking to repay such advances required under applicable Law. The Parent shall cooperate in the defense of any such matter.
(e) If any Litigation described in this Section 7.3 (each, an "Action") arises or occurs, the Surviving Corporation shall control the defense of such Action with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the party seeking indemnification pursuant to this Section 7.3 (each, an "Indemnified Party"); provided that the Indemnified Party shall be permitted to participate in the defense of such Action through counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the foregoing, if there is any conflict between the Surviving Corporation and any Indemnified Parties or there are additional defenses available to any Indemnified Parties, the Indemnified Parties shall be permitted to participate in the defense of such Action with counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to the Surviving Corporation, and the Indemnified Parties shall be indemnified therefor; provided that the Surviving Corporation shall not be obligated to pay the reasonable fees and expenses of more than one counsel for all Indemnified Parties in any single Action except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The Surviving Corporation shall not be liable for any settlement effected without its written consent, which consent shall not be unreasonably withheld.
(f) The provisions of this Section 5.4 7.3 shall survive the consummation of the Merger and expressly are intended to be for benefit each of the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesCovered Persons.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, to the fullest extent required permitted by law (i) Buyer will not take any action Law (including to the exercise fullest extent authorized or permitted by any amendments to or replacements of voting rights in connection with the Ilijan Entities) so as WBCA adopted after the date of this Agreement that increase the extent to amendwhich a corporation may indemnify its officers and directors), modify or repeal indemnify and hold harmless (and advance expenses, provided the provisions for indemnification Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such Person is not entitled to indemnification) the present and former employee, agent, director or officer directors and officers of the Company and its Subsidiaries Subsidiaries, any Person acting as director, trustee or officer of the Safeco Insurance Foundation on behalf of the Company or any fiduciaries under any Company Benefit Plan (each, together with such person’s heirs, executors or administrators, each an “"Indemnified Party” and") against any and all costs or expenses (including reasonable attorneys' fees and expenses), collectivelyjudgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the “Indemnified Parties”) contained in Effective Time, including the Organizational Documents approval of the Company, its Subsidiaries this Agreement or the Ilijan Entities, transactions contemplated hereby or the terms arising out of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior or pertaining to the Closingtransactions contemplated hereby, without whether asserted or claimed prior to, at or after the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsEffective Time.
(b) For a period of Subject to the next sentence, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, at no expense to the beneficiaries, either (i) continue to maintain in effect for six (6) years after from the Closing Date, Buyer shall cause to be maintained in effect Effective Time directors’ ' and officers’ ' liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to a minimum limit of US$50 million the Indemnified Parties as the Company's currently existing directors' and officers' liability insurance and fiduciary liability insurance (the "Current Insurance") with respect to claims arising from matters existing or related to facts or events that occurred occurring at or before prior to the ClosingEffective Time (including the transactions contemplated hereby), or (ii) purchase a six (6) year extended reporting period endorsement with respect to the Current Insurance (a "Reporting Tail Endorsement") and maintain this endorsement in full force and effect for its full term. To the extent purchased after the date hereof and prior to the Effective Time, such insurance policies shall be placed through such broker(s) and with such insurance carriers as may be specified by Parent and as are reasonably acceptable to the Company; provided that such insurance carrier has at least an "A" rating by A.M. Best with respect to directors' and officers' liability insurance and fiduciary liability insurance. Notwithstanding the foregoing, in no event shall Parent or the Surviving Corporation be required to expend for any such policies contemplated by this Section 6.9(b) an annual premium (measured for "tail" purposes by reference to 1/6th the premium paid therefor) amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; provided further that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Notwithstanding the first sentence of this Section 6.9(b), but subject to the second and third sentences of this Section 6.9(b), the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time.
(c) In The articles of incorporation and bylaws of the event thatSurviving Corporation shall include provisions for indemnification, after advancement of expenses and exculpation of the Closing DateIndemnified Parties on the same basis as set forth in the Constituent Documents of the Company in effect on the date of this Agreement. Following the Effective Time, the Company Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the provisions in its articles of incorporation and bylaws providing for indemnification, advancement of expenses and exculpation of Indemnified Parties, as applicable, with respect to the facts or Buyer circumstances occurring at or any prior to the Effective Time, to the fullest extent permitted from time to time under applicable Law, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by applicable Law that would enlarge the scope of their respective Subsidiaries the Indemnified Parties' indemnification rights thereunder.
(d) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, Parent shall cause proper provisions shall to be made prior to the consummation of any transaction of the type described in clause (i) or clause (ii) of this sentence so that the successors and assigns of Parent or the Company, its Subsidiaries or BuyerSurviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.46.9.
(de) The From and after the Effective Time, Parent and the Surviving Corporation agree not to, directly or indirectly, amend, modify, limit or terminate the advancement of expenses, exculpation and indemnification provisions of this the agreements listed on Section 5.4 are 6.9(e) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation's Constituent Documents.
(f) This Section 6.9 is intended to be for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be enforceable bybinding on all successors and assigns of Parent and the Surviving Corporation. Each Indemnified Party shall be a third-party beneficiary of this Section 6.9, and entitled to enforce the covenants contained in this Section 6.9. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.9 that is denied by Parent and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification, then Parent or the Surviving Corporation shall pay such Indemnified Party's costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Corporation. The rights of the Indemnified Parties under this Section 6.9 shall be in addition to Sellersany rights such Indemnified Parties may have under the Constituent Documents of the Company, each Indemnified Partythe Constituent Documents of any of the Company's Subsidiaries or the Surviving Corporation or under any applicable Contracts, his insurance policies or her heirs, executors or administrators and his or her other representativesLaws.
Appears in 1 contract
Samples: Merger Agreement (Safeco Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) Except The Surviving Corporation shall cause all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation now existing in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and or former employeedirector, agent, director officer or officer employee of the Company and or any of its Subsidiaries and the fiduciaries of any Company Benefit Plans (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained as provided in (i) the Organizational Documents of the Company, (ii) the minutes of any meetings of the Company Board or any committee of the Company Board, (iii) the minutes of any meetings of the boards of directors, or any committee of the boards of directors or equivalent governing bodies, of any of the Subsidiaries, (iv) agreements between an Indemnified Party and the Company or one of its Subsidiaries or (v) otherwise in effect at the Ilijan EntitiesEffective Time, to survive the Merger and to continue in full force and effect for a period of not less than six years after the Effective Time or, if longer, for such period as is set forth in any applicable agreement with an Indemnified Party in effect on the date of this Agreement, and all rights to advancement and indemnification shall, with respect to any claim or matter asserted prior to such period, continue for the terms duration of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsclaim or matter.
(b) For The Surviving Corporation shall indemnify all Indemnified Parties to the fullest extent permitted by applicable Law with respect to any claim, demand, suit, action, proceeding, arbitration, investigation or inquiry, whether civil, criminal, administrative or investigative (“Indemnified Claim”), for acts or omissions arising out of or relating, in whole or in part, to their services as directors, officers or employees of the Company, its Subsidiaries or another Person, if such Indemnified Party is or was serving as a period director, officer or employee of such other Person at the request of the Company, or fiduciaries of the Company Benefit Plans, whether asserted or claimed at, after or before the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this Agreement or otherwise). If any Indemnified Party is or becomes involved in any Indemnified Claim or other matter subject to indemnification hereunder, the Surviving Corporation shall advance as incurred and interest free any costs or expenses (including legal fees and disbursements), judgments, fines, losses, claims, damages, amounts paid in settlement or other Liabilities (“Damages”) arising out of or incurred in connection with such Indemnified Claim or other matter, subject to the Surviving Corporation’s, as applicable, receipt of an unsecured undertaking by or on behalf of such Indemnified Party, if required by the DGCL, to repay such Damages if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified. In the event of any Indemnified Claim, (i) the Surviving Corporation shall cooperate with the Indemnified Party in the defense of such Indemnified Claim and (ii) the Surviving Corporation shall not settle, compromise or seek or consent to the entry of any judgment in any Indemnified Claim pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Indemnified Claim.
(c) The Surviving Corporation shall maintain in effect for at least six (6) years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time the current policies of directors’ and officers’ liability insurance to a minimum limit maintained by the Company or policies of US$50 million at least the same coverage and amounts containing terms and conditions which are no less advantageous with respect to claims arising from out of or related relating to facts events which occurred before or events that occurred at or 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 the Surviving Corporation is not required to pay an annual premium in excess of 300% of the last annual premium paid by the Company for such insurance before the Closing.
date of this Agreement (c) In such 300% amount being the event that“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, after then the Closing DateSurviving Corporation shall instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in lieu of the arrangements contemplated by this Section 5.8(c), before the Effective Time, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that entitled to purchase a “tail” directors’ and officers’ liability insurance policy covering the successors matters described in this Section 5.8(c) and assigns for the same limits of liability as the current directors’ and officers’ liability insurance maintained by the Company, its Subsidiaries or Buyerwhich cost of such tail policy shall not exceed the Maximum Premium, and, if the Company elects to purchase such a policy before the Effective Time, then the Surviving Corporation’s obligations under this Section 5.8(c) shall be satisfied so long as the case may be, shall assume Surviving Corporation causes such policy to be maintained in effect for a period of six years following the obligations set forth in this Section 5.4Effective Time.
(d) Parent hereby acknowledges that the Indemnified Parties may have certain rights to indemnification, advancement of expenses and/or insurance provided by other Persons. Parent hereby agrees that (i) the Surviving Corporation is the indemnitor of first resort (i.e., its obligations to the Indemnified Parties are primary and any obligation of such other Persons to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any such Indemnified Party are secondary) and (ii) the Surviving Corporation shall be required to advance the full amount of expenses incurred by any such Indemnified Party and shall be liable for the full indemnifiable amounts, without regard to any rights any such Indemnified Party may have against any such other Person. The provisions Surviving Corporation further agrees that no advancement or payment by any of such other Persons on behalf of any such Indemnified Party with respect to any claim for which such Indemnified Party has sought indemnification from the Surviving Corporation shall affect the foregoing and such other Persons shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Party against the Surviving Corporation.
(e) The covenants contained in this Section 5.4 5.8 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. The obligations of the Surviving Corporation under this Section 5.8 shall not be terminated or modified in addition such a manner as to Sellersadversely affect the rights of any Indemnified Party to whom this Section 5.8 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnified Party shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnified Parties to whom this Section 5.8 applies, and any Person who pays advancement or indemnification to or on behalf of any of the Indemnified Parties as described in the last sentence of Section 5.8(d), shall be third party beneficiaries of this Section 5.8).
(f) In the event that the 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 Indemnified Partysuch case, his the Surviving Corporation shall take all necessary action so that the successors or her heirsassigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 5.8.
(g) Nothing in this Agreement is intended to, executors shall be construed to or administrators shall release, waive or impair any rights to directors’ and his officers’ insurance claims under any policy that is or her has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other representativesemployees, it being understood and agreed that the indemnification provided for in this Section 5.8 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, Fox shall cause the Surviving Corporation to indemnify, defend and hold harmless the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employeeofficers and directors of the Company (each an "Indemnified Officer/Director") against all losses, agentclaims, damages, liabilities, amounts or reasonable expenses ("Losses") that are paid in settlement (provided that such settlement has been approved by Fox, such approval not to be unreasonably withheld) of, or otherwise in connection with, any claim, action, suit, proceeding or investigation (a "Claim"), based in whole or in part on the fact that such person is or was a director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors arising out of actions or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries omissions occurring at or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the ClosingEffective Time (including, without limitation, the prior written consent of Transactions), in each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, case to the full extent reasonably possible, permitted under the DGCL and the Company's Amended and Restated Certificate of Incorporation and by-laws as in effect on the date of this Agreement. The Surviving Corporation shall exercise pay any expenses in advance of the voting, governance and contractual powers available final disposition of any such Claim to each Indemnified Officer/Director to the Company and its Subsidiaries fullest extent permitted under the DGCL upon receipt from the Indemnified Officer/Director to cause whom expenses are advanced of any undertaking to repay such advances if required under the Ilijan Entities to honor, such provisions for indemnification contained DGCL. The Surviving Corporation shall cooperate in the Organizational Documents and terms defense of any indemnification agreementssuch matter.
(b) Fox shall cause the Surviving Corporation to keep in effect provisions in its certificate of incorporation and by-laws providing for exculpation of director liability and its indemnification of the Indemnified Officers/Directors to the fullest extent permitted under the DGCL, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enlarge the right of indemnification of the Indemnified Officers/Directors.
(c) For a period of six (6) years after the Closing DateEffective Time, Buyer Fox shall cause the Surviving Corporation to be maintained maintain in effect the current policies of directors’ ' and officers’ ' liability insurance to a minimum limit of US$50 million maintained by the Company covering persons who are currently covered by the Company's officers' and directors' liability insurance policies with respect to claims arising from actions or related to facts or events that occurred omissions occurring at or before prior to the Closing.
Effective Time to the extent that such policies are available; provided, that policies of at least the same coverage containing terms and conditions which are no less advantageous to the insureds may be substituted therefor; and provided, further, that in no event shall the Surviving Corporation be required to expend amounts for premiums per annum in excess of 200% of the current annual premiums for the twelve-month period ending December 31, 1995 (cthe "Maximum Premium") In to maintain or procure insurance coverage pursuant to this Section 6.5, or, if the event that, after cost of such coverage exceeds the Closing DateMaximum Premium, the Company or Buyer or any maximum amount of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not coverage that can be purchased for the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Maximum Premium.
(d) From and after the Effective Time, Fox agrees to indemnify, defend and hold harmless the Indemnified Officers/Directors against all Losses that are paid in settlement (provided that such settlement has been approved by Fox, such approval not to be unreasonably withheld) of, or otherwise in connection with, a Claim based in whole or in part on the fact that such Person is or was a director or officer of the Company and arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the Transactions), in each case to the fullest extent permitted by applicable Law and whether or not the Surviving Corporation is permitted by applicable Law to provide any indemnity with respect to such Losses. Fox shall pay any reasonable expenses in advance of the final disposition of any such Claim to each Indemnified Officer/Director to the fullest extent permitted by applicable Law. Fox shall cooperate in the defense of any such matter.
(e) The provisions of this Section 5.4 6.5 shall survive the consummation of the Merger and expressly are intended to be for benefit each of the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesOfficers/Directors.
Appears in 1 contract
Samples: Merger Agreement (New World Communications Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries and successors to, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under any and all indemnification agreements in effect immediately prior to the extent required by law (i) Buyer will not take Appointment Time between the Company or any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify its Subsidiaries and any of their respective current or repeal the provisions for indemnification of former directors and officers and any present and former employee, agent, Person who becomes a director or officer of the Company and or any of its Subsidiaries prior to the Appointment Time (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”). In addition, for a period of six (6) years following the Effective Time, Parent shall (and shall cause the Surviving Corporation and its Subsidiaries to) (i) cause the articles of incorporation and bylaws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation provisions contained in the Organizational Documents articles of incorporation and bylaws (or other similar organizational documents) of the Company, Company and its Subsidiaries immediately prior to the Appointment Time, and during such six (6) year period, such provisions shall not be amended, repealed or the Ilijan Entities, or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in individuals who were covered by such capacities prior to the Closingprovisions, without the prior written consent of each affected Indemnified Party, except as required by applicable Law and (ii) Buyer and honor and fulfill the obligations of the Company under any indemnification agreements in effect as of the Agreement Date between the Company and any Indemnified Party; provided, however, that in the event any claim or claims are asserted or made within such period, all rights to indemnification in respect of any such claim or claims shall honorcontinue until disposition of any and all such claims.
(b) Parent shall, or shall cause the Surviving Corporation and its Subsidiaries to, advance expenses (including reasonable legal fees and expenses) incurred in the defense of any claim, action, suit, proceeding or investigation with respect to any matters subject to indemnification pursuant to the procedures set forth, and shall cause to the extent provided in the articles of incorporation and bylaws (or other similar organizational documents) of the Company and its Subsidiaries immediately prior to honorthe Appointment Time; provided, andhowever, that any Indemnified Party to whom expenses are advanced undertakes, to the extent reasonably possible, shall exercise required by the voting, governance articles of incorporation and contractual powers available to bylaws (or other similar organizational documents) of the Company and its Subsidiaries immediately prior to cause the Ilijan Entities Appointment Time or the WBCA, to honor, repay such provisions for indemnification contained in advanced expenses to Parent or the Organizational Documents Surviving Corporation as soon as reasonably practicable if it is ultimately and terms of any indemnification agreementsfinally determined that such Person is not entitled to indemnification.
(bc) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent and the Surviving Corporation shall cause to be maintained 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 a minimum limit of US$50 million the Appointment Time, covering each person covered by the D&O Insurance immediately prior to the Appointment Time, on terms with respect to claims arising from the coverage, retention, limitations of liability and amounts no less favorable, in the aggregate, than those of the D&O Insurance in effect on the Agreement Date and with an insurance company with the same or related to facts or events better credit rating as the insurance company providing the current D&O Insurance; provided, however, that occurred the Surviving Corporation may, at or before the Closing.
its option, (ci) In the event that, after the Closing Datesubstitute therefor policies of Parent, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries containing terms with respect to coverage, retention, limitations of liability and amounts no less favorable, in the aggregate, to such persons than the D&O Insurance or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance program (to be effective as of the Effective Time); provided further, however, that in satisfying its obligations under this Section 7.11(c) Parent and the Surviving Corporation shall not be obligated to pay annual premiums in excess of two hundred fifty percent (250%) of the amount paid by the Company for coverage for its last full fiscal year (such two hundred fifty percent (250%) amount, the “Maximum Annual Premium”); 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 Appointment Time, notwithstanding anything to the contrary set forth in this Agreement, Parent or the Company may purchase a six-year “tail” prepaid policy on the D&O Insurance containing terms with respect to coverage, retention, limitations of liability and amounts no less favorable, in the aggregate, than the D&O Insurance in effect on the Agreement Date and with an insurance company with the same or better credit rating as the insurance company providing the current D&O Insurance. In the event that Parent shall purchase such a “tail” policy prior to the Appointment Time, Parent and the Surviving Corporation shall maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder through such six-year period, in lieu of all other obligations of Parent and the Surviving Corporation under the first sentence of this Section 7.11(c) for so long as such “tail” policy shall be maintained in full force and effect.
(d) If Parent or the Surviving Corporation or any of their respective its successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Surviving Corporation shall assume all of the obligations of Parent and the Surviving Corporation set forth in this Section 5.47.11.
(de) The provisions of obligations under this Section 5.4 7.11 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 the D&O Insurance or the “tail” policy referred to in Section 7.11(c) 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 D&O Insurance or the “tail” policy referred to in Section 7.11(c) hereof (and their heirs and representatives). Each of the Indemnified Parties or other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 7.11(c) hereof (and their heirs and representatives) are intended to be for third party beneficiaries of this Section 7.11, with full rights of enforcement as if a party thereto. The rights of the benefit ofIndemnified Parties (and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 7.11(c) hereof (and their heirs and representatives)) under this Section 7.11 shall be in addition to, and shall be enforceable bynot in substitution for, any other rights that such 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 the Company or any of its Subsidiaries, or applicable Law (whether at law or in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesequity).
Appears in 1 contract
Samples: Merger Agreement (Sonosite Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) Except to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) The Buyer shall honornot, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing, take any action to alter or impair any exculpatory or indemnification provisions now existing in the Articles, the respective organizational documents of the Subsidiaries or in the agreements listed on Schedule 5.10(a) entered into for the benefit of any individual who served as a director or officer of the Company or any of its Subsidiaries at any time prior to the Closing. Notwithstanding the foregoing, the Buyer shall be permitted to alter or impair any such exculpatory or indemnification provisions (i) to the extent required to conform with changes in Legal Requirement and (ii) if such alterations or impairments do not affect the application of such provisions to acts or omissions of such individuals prior to the Closing, other than matters relating to acts or omissions of such individuals prior to the Closing as to which the Buyer is entitled to indemnification under Article VII of this Agreement; it being the intent of the parties that, except as provided in this sentence and subject to applicable Legal Requirements, the individuals who are or were officers and directors of the Company and its Subsidiaries at any time prior to the Closing (the “Indemnified Persons”) shall continue to be entitled to such exculpation and indemnification to the full extent now contained in the Articles, the respective organizational documents of its Subsidiaries and any agreements listed on Schedule 5.10(a) entered into for the benefit of such Persons. The Company and its Subsidiaries shall, and the Buyer shall cause the Company and its Subsidiaries to, perform under the provisions described in this Section 5.10(a).
(b) On or prior to the Closing Date, Buyer the Company shall cause to be maintained purchase and prepay in effect directors’ full all premiums, fees and officers’ other costs for a director and officer liability insurance policy covering the Indemnified Persons for pre-Closing periods and covering the period commencing on the Closing Date and ending no earlier than six (6) years from the Closing Date, which policy shall be no less favorable to a minimum limit such individuals than the policy or policies maintained by the Company and its Subsidiaries immediately prior to the Closing for the benefit of US$50 million with respect such individuals (the “Tail Policy”). The Buyer will not, and will cause the Company and the Subsidiaries not to, take any action to claims arising from cancel, amend or related modify the Tail Policy without the prior written consent of the Securityholder Representative. The Company shall pay all premiums, fees and costs of the Tail Policy and such premiums, fees, costs and expenses shall constitute “Sellers’ Expenses” hereunder to facts or events that occurred at or before the extent unpaid as of the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 5.10 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyPerson and such Indemnified Person’s estate, his heirs and ActiveUS 136966801v.1 representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or her heirssuch Indemnified Person’s estate, executors heirs and representatives may have under the Articles, the respective organizational documents of the Subsidiaries, any Legal Requirement, any contract or administrators and his or her other representativesotherwise.
Appears in 1 contract
Samples: Securities Purchase Agreement (Progress Software Corp /Ma)
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, indemnify, defend and hold harmless, to the same extent required such Indemnified Parties are indemnified as of the date of this Agreement by law the Company or the applicable Company Subsidiary pursuant to their respective Constituent Documents, each person who is now, or has been at any time prior to the date of this Agreement or who becomes such prior to the Effective Time, an officer or director of the Company or any of its subsidiaries (the “Indemnified Parties”) against (i) Buyer will any and all losses, claims, damages, costs, expenses, fines, liabilities or judgments, including any amounts that are paid in settlement with the approval of the Surviving Corporation (which approval shall not take any action (including the exercise be unreasonably withheld or delayed) of voting rights or in connection with any Action based in whole or in part on or arising in whole or in part out of the Ilijan Entities) so as to amend, modify fact that such person is or repeal the provisions for indemnification of any present and former employee, agent, was a director or officer of the Company or any of its subsidiaries and its Subsidiaries pertaining to any action or omission existing or occurring at or prior to the Effective Time and whether asserted or claimed prior to, or at or after, the Effective Time (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” andLiabilities”), collectivelyand (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the “transactions contemplated hereby. The Surviving Corporation will provide to the Indemnified Parties”) contained Parties all rights and privileges available to such parties in the Organizational Documents Constituent Documents, including the advancement of expenses.
(b) Without limiting the foregoing, from and after the Effective Time, Parent shall cause the organizational documents of the CompanySurviving Corporation to contain provisions no less favorable to the Indemnified Parties with respect to limitation of liabilities of directors and officers, its Subsidiaries indemnification and advancement of expenses than are set forth as of the date hereof in the Constituent Documents, which provisions shall not be amended, repealed or the Ilijan Entities, or the terms of any indemnification agreements, otherwise modified in such a manner as that would adversely affect the rights thereunder of the Indemnified Parties.
(c) Parent shall cause the individuals serving as officers and directors of the Company and any Indemnified Parties to be indemnified in respect of their serving in such capacities Company Subsidiary immediately prior to the Closing, without Effective Time who are then covered by the prior written consent of each affected Indemnified Party, directors’ and (ii) Buyer shall honor, and shall cause officers’ liability insurance policy currently maintained by the Company or any Company Subsidiary (a correct and its Subsidiaries complete copy of which has heretofore been delivered to honor, and, Parent) to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions be covered for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after from the Closing Date, Buyer shall cause to be maintained Effective Time by such policy (provided that Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not less advantageous in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million any material respect than such policy) with respect to claims arising from acts or related omissions occurring prior to facts the Effective Time that were committed by such officers and directors in their capacity as such; provided, however, that in no event shall Parent be required to expend per year of coverage more than 250% of the amount currently expended by the Company and any Company Subsidiary per year of coverage as of the date of this Agreement (the “Maximum Amount”) to maintain or events that occurred at procure insurance coverage pursuant hereto. If Parent is unable to maintain or before obtain the Closinginsurance called for by this Section 7.05(c), Parent shall obtain as much comparable insurance as available for the Maximum Amount. The Indemnified Parties may be required to make reasonable application and provide reasonable and customary representations and warranties to applicable insurance carriers for the purpose of obtaining such insurance.
(cd) In If the event that, after the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their its respective successors or assigns (i) consolidates with or merges with or into any other person and shall is not be the continuing or surviving corporation, limited liability company, partnership or other entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any person, person then, and in either each such case, as a condition to any such merger, consolidation, transfer or conveyance, proper provisions shall provision will be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall Surviving Corporation assume all of the obligations set forth in this Section 5.47.05.
(de) The provisions of this This Section 5.4 are 7.05 is intended to be for the irrevocable benefit of, and shall to grant third party rights to, the Indemnified Parties, and will be enforceable bybinding on all successors and assigns of the Company, Parent and the Surviving Corporation. Each of the Indemnified Parties will be entitled to enforce the covenants contained in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesthis Section 7.05.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Penn Millers Holding Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) Except After the Closing and for a period of six (6) years thereafter, Buyer shall cause the Company and its Subsidiaries to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as continue to amend, modify or repeal the provisions for indemnification of any indemnify and hold harmless each present and former employee, agentmanager, director or and officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an each a “Indemnified Party” and, collectively, the “Indemnified PartiesCovered Person”) contained in the Organizational Documents of the Companyagainst any costs or expenses (including reasonable attorneys’ fees), its Subsidiaries judgments, fines, losses, claims, damages or the Ilijan Entities, or the terms liabilities of any indemnification agreementsnature whatsoever, incurred in such a manner as would adversely affect the rights connection with any Action arising out of any Indemnified Parties or pertaining to be indemnified in respect of their serving in such capacities matters existing or occurring at or prior to the Closing, without whether asserted or claimed prior to, at or after the prior written consent of each affected Indemnified PartyClosing, and (ii) Buyer shall honor, and shall cause to the fullest extent that the Company and its Subsidiaries to honorwould have been permitted under Law and/or any of the certificate of incorporation, andbylaws, to the extent reasonably possiblelimited liability company agreement, shall exercise the votingcertificate of formation and/or other organizational documents (each, governance and contractual powers available to an “Organizational Document”) of the Company and its Subsidiaries in effect on the date hereof to cause indemnify such Person (including the Ilijan Entities advancing of expenses as incurred to honorthe 42 fullest extent permitted under Law); provided, however, the Person to whom such provisions for indemnification contained in expenses are advanced provides an unsecured undertaking to the Organizational Documents and terms of any indemnification agreementsCompany to repay such advances if it is ultimately determined that such Person is not entitled to indemnification.
(b) For a period of six (6) years after the Closing DateClosing, Buyer shall cause not, and shall not permit the Company or any of its Subsidiaries to amend, repeal or modify any provision in its Organizational Documents relating to the exculpation or indemnification of any present or former managers, officers and directors (unless required by Law) without the prior written consent of Sellers’ Representative; provided that the Company may dissolve or merge out of existence the Company or any of its Subsidiaries without the prior written consent of Sellers’ Representative so long as the surviving entity maintains the same provision in its Organizational Documents relating to the exculpation or indemnification of any present or former managers, officers and directors (unless required by Law), it being the intent of the parties that the Covered Persons shall continue to be maintained in effect directors’ entitled to such exculpation and officers’ liability insurance indemnification to a minimum limit the full extent of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the ClosingLaw.
(c) On or prior to the Closing Date, the Sellers shall cause the Company to purchase six years of tail coverage for manager, director and officer liability insurance, at the cost and expense of Sellers, which insurance policy shall provide coverage for each Covered Person comparable to the policy or policies maintained by the Company and its Subsidiaries immediately prior to the Closing for the benefit of such individuals. All costs and expenses, including any premiums, incurred in connection with obtaining such insurance policy shall be considered Transaction Expenses and shall be paid on behalf of the Company by the Sellers at the Closing. Buyer shall not, and after Closing shall not permit the Company or any of its Subsidiaries to amend, repeal or modify any provision in such insurance policy.
(d) In the event that, that after the Closing Date, Buyer, the Company or Buyer or any of their respective Subsidiaries its Subsidiaries, or any of their respective successors or assigns assigns, (ia) 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 (iib) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either such each case, proper provisions provision shall be made so that the successors and assigns of Buyer or the Company, Company or any of its Subsidiaries or BuyerSubsidiaries, as the case may be, shall assume honor the indemnification and other obligations set forth in of such Persons, including under this Section 5.46.7.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to From the extent required by law Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and hold harmless each present (ias of the Effective Time) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, officer or director or officer of the Company and its Subsidiaries subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained ), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements (collectively, “Costs”), incurred in the Organizational Documents connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of the Company, its Subsidiaries actions taken by them in their capacity as officers or the Ilijan Entities, directors at or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the ClosingEffective Time (including this Agreement and the transactions and actions contemplated hereby), without whether asserted or claimed prior to, at or after the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, andEffective Time, to the fullest extent reasonably possiblepermitted under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any claim, shall exercise action, suit, proceeding or investigation from the voting, governance and contractual powers available Surviving Corporation to the same extent such persons are entitled to advancement of expenses pursuant to the articles of organization or bylaws of the Company and its Subsidiaries to cause or such subsidiary as in effect on the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsdate hereof.
(b) For a period The articles of six organization and by-laws 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 as are set forth in the Company’s Articles of Organization and By-laws as of the date of this Agreement.
(6c) years after The Surviving Corporation shall maintain, at no expense to the Closing Datebeneficiaries, Buyer shall cause to be maintained in effect for six years from the Effective Time the current directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) In the event that, after the Closing Date, policies maintained by the Company (provided that Parent or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns the Surviving Corporation may (i) consolidates with or merges into substitute therefor policies of at least the same coverage containing terms and conditions which are, in the aggregate, no less advantageous to any other person and shall not be the continuing or surviving entity of such consolidation or merger beneficiary thereof or (ii) transfers all arrange for “tail” coverage for such six-year period under the Company’s current directors’ and officers’ liability insurance policies) with respect to matters existing or a substantial portion of its properties and assets occurring at or prior to the Effective Time; provided, however, that during this period, the Surviving Corporation shall not be required to maintain any person, then, and coverage in either such case, proper provisions shall be made so that the successors and assigns excess of the Companyamount that can be obtained for the remainder of the period for an annual premium of 300% of the current annual premium paid by the Company for its existing coverage, its Subsidiaries or Buyer, as the case may be, shall assume the obligations amount of which is set forth in this Section 5.46.6(c) of the Company Disclosure Schedule.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except 7.7.1 NHSB shall maintain, and/or shall cause NEWCO to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreementsmaintain, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions effect for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after following the Closing DateEffective Time, Buyer shall cause to be maintained in effect the current directors’ and officers’ liability insurance to a minimum limit policies maintained by Connecticut Bancshares and the Connecticut Bancshares Subsidiaries (provided, that NHSB may substitute therefor policies of US$50 million at least the same coverage containing terms and conditions which are not materially less favorable) with respect to claims matters occurring prior to the Effective Time; provided, however, that in no event shall NHSB be required to expend in the aggregate pursuant to this Section 7.7.1 more than 150% of the annual cost currently expended by Connecticut Bancshares with respect to such insurance. In connection with the foregoing, Connecticut Bancshares agrees 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 From and after the Effective Time, NHSB shall, and/or shall cause NEWCO or the appropriate NEWCO Subsidiary to, 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, director or employee of Connecticut Bancshares or SBM (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including reasonable attorney’s fees), liabilities or judgments or amounts that are paid in settlement (which settlement shall require the prior written consent of NEWCO, which consent shall not be unreasonably withheld) of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, investigative or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising from in whole or related in part out of the fact that such person is or was a director, officer or employee of Connecticut Bancshares or a Connecticut Bancshares Subsidiary if such Claim pertains to facts any matter of fact arising, existing or events that occurred occurring at or before the Closing.
Effective Time (cincluding, without limitation, the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time (the “Indemnified Liabilities”), to the fullest extent permitted under applicable state or federal law and under Connecticut Bancshares’ Certificate of Incorporation and Bylaws. NEWCO shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by applicable state or federal law upon receipt of an undertaking to repay such advance payments if he or she shall be adjudicated or determined not to be entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.7.2 upon learning of any Claim, shall notify NEWCO (but the failure so to notify NEWCO shall not relieve it from any liability which it may have under this Section 7.7.2, except to the extent such failure prejudices NEWCO) and shall deliver to NEWCO the undertaking referred to in the previous sentence. In the event that, of any such Claim (whether arising before or after the Closing DateEffective Time) (1) NEWCO shall have the right to assume the defense thereof (in which event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption NEWCO shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if NEWCO 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 NEWCO and the Indemnified Parties, the Company Indemnified Parties may retain counsel reasonably satisfactory to them, and NEWCO shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) NEWCO shall be obligated pursuant to this paragraph to pay for only one (1) firm of counsel for all Indemnified Parties whose reasonable fees and expenses shall be paid promptly as statements are received unless there is a conflict of interest that necessitates more than one (1) law firm, (3) NEWCO shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and (4) no Indemnified Party shall be entitled to indemnification hereunder with respect to a matter as to which (x) he shall have been adjudicated in any proceeding not to have acted in good faith and in a manner he reasonably believed to be in, or Buyer not opposed to, the best interests of Connecticut Bancshares or any Connecticut Bancshares 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 Connecticut Bancshares or any Connecticut Bancshares Subsidiary. The determination shall be made by a majority vote of a quorum consisting of the Directors of NEWCO who are not involved in such proceeding.
7.7.3 If NHSB, NEWCO or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates shall consolidate with or merges merge into any other person entity and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers shall transfer all or a substantial portion substantially all of its properties and assets to any personother entity, then, and then in either such each case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, NHSB and NEWCO shall assume the obligations set forth in this Section 5.47.7.
(d) The provisions 7.7.4 NHSB shall honor and/or shall cause NEWCO to honor Connecticut Bancshares’ “Directors’ Consultation Plan” as it exists as of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesdate hereof.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to In the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification event of any present and former employeethreatened or actual claim, agentaction, director suit, proceeding or officer of the Company and its Subsidiaries investigation, whether civil, criminal or administrative (each, together with such person’s heirsa “Proceeding”), executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entitieswhich any Person who is now, or the terms of has been at any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities time prior to the Closing, without the prior written consent a manager, director, officer or Affiliate of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries or a Subsidiary (the “Indemnified Persons”) is, or is threatened to honorbe, andmade a party or witness thereto based in whole or in part on the fact that such Person is or was a manager, director, officer or Affiliate of the Company or a Subsidiary, whether in any case asserted or arising before, on or after the Closing Date, the Surviving Corporation shall, to the fullest extent reasonably possiblepermitted by law, shall exercise indemnify and hold harmless such Indemnified Person from and against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses in advance of the voting, governance and contractual powers available final disposition of any Proceeding to each Indemnified Person to the Company fullest extent permitted by law), judgments, fines and its Subsidiaries to cause the Ilijan Entities to honor, amounts paid in settlement incurred in connection with or arising out of such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsProceeding.
(b) For An Indemnified Person shall notify the Surviving Corporation of the existence of a period Proceeding for which such Indemnified Person is entitled to indemnification hereunder as promptly as reasonably practicable after such Indemnified Person learns of six such Proceeding; provided, that the failure to so notify shall not affect the obligations of the Surviving Corporation under this Section 4.2 except to the extent such failure to notify actually prejudices the Surviving Corporation. The Indemnified Person and the Surviving Corporation shall cooperate fully with each other in connection with the defense of any Proceeding. No settlement of a Proceeding may be made by the Surviving Corporation without the Indemnified Person’s consent, except for a settlement which requires no more than a monetary payment for which the Indemnified Person is fully indemnified and which does not require the admission of liability.
(6c) years after the Closing DateThe Buyer shall, Buyer or shall cause to be maintained in effect the Surviving Corporation to, maintain the Company’s existing directors’ and officers’ liability insurance to or purchase a minimum limit so-called “tail” for such directors’ and officers’ liability insurance, in each case covering Persons who are currently covered by such insurance on terms no less favorable than those in effect on the date hereof for a period of US$50 million with respect to claims arising from or related to facts or events that occurred at or before least six years after the Closing.
(c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 4.2 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified PartyPerson and such Indemnified Person’s estate, his heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Person or her heirssuch Indemnified Person’s estate, executors heirs and representatives may have under the Company Charter Documents, any Legal Requirement, any contract or administrators otherwise.
(e) The obligations of the Surviving Corporation under this Section 4.2 shall continue in full force and his effect for a period commencing as of the Closing and ending as of the later of (i) the six year anniversary of the Closing and (ii) the date that all applicable statute of limitation periods have expired for any claim or her other representativesclaims for which an Indemnified Person may be entitled to indemnification under this Section 4.2; provided, that all rights to indemnification in respect of any claim for indemnification under this Section 4.2 asserted or made within such period shall continue until the final disposition of such claim.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Buyer shall, and shall cause the Company (following the Closing) and each of its Subsidiaries to, fulfill and honor the obligations of the Company and each of its Subsidiaries to any individual who at any time prior to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, Closing was a director or officer of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified PartyD&O Indemnitee” and, collectively, the “Indemnified PartiesD&O Indemnitees”) contained in pursuant to any indemnification provisions under the Organizational Documents articles of organization, bylaws, certificate of formation or operating agreement (or any similar organizational documents) (“Governing Documents”) of any member of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, Company Group as in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities effect immediately prior to the Closingdate hereof; provided that to the extent that any amounts paid by the Company Group under this Section 8.6(a) in connection with any claim brought by Buyer are based on any facts or circumstances that form the basis for an indemnification claim by Buyer under Article IX for which the Seller is determined to be liable in accordance with Article IX, without such amounts shall be deemed to be a Loss for which the prior written consent of each affected Indemnified PartyBuyer may be entitled to indemnification subject to and in accordance with Article IX. From and after the Closing Date, and (ii) except as required by applicable Law, Buyer shall honor, and shall cause the Company (following the Closing) and each of its Subsidiaries to honor, and, maintain provisions with respect to indemnification and exculpation from liability that are no less favorable than those set forth in the Governing Documents of the Company Group as of immediately prior to the extent reasonably possibledate hereof, which provisions shall exercise the votingnot be amended, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, repealed or otherwise modified during such provisions for period in any manner that would adversely affect such indemnification contained in the Organizational Documents and terms rights thereunder of any indemnification agreementsD&O Indemnitee.
(b) For a period of six (6) years after the Closing Date, Buyer shall, or shall cause to be maintained the Company (following the Closing) to, maintain in effect the Company Group’s current directors’ and officers’ liability insurance or a “tail” insurance policy from an insurance carrier with the same or better credit rating as the Company Group’s current insurance carrier on terms at least as favorable as the Company Group’s current directors’ and officers’ liability insurance for the six (6) year period following the Closing, in each case covering such acts or omissions occurring at or prior to a minimum limit of US$50 million the Closing Date with respect to claims arising from the D&O Indemnitees (and including in connection with the transactions contemplated by this Agreement), on terms and scope with respect to such coverage, and in amount, at least as favorable to those of such policy in effect on the date of this Agreement. Without limiting the foregoing, prior to the Closing Date, the Company shall purchase, at the Company’s expense, “tail” coverage for the six-year period following the Closing under the directors’ and officers’ liability insurance policies of the Company Group to be in place prior to the Closing Date with respect to matters existing or related to facts or events that occurred occurring at or before prior to the Closing Date that provides coverage no less favorable in scope and amount to the coverage provided by such policies at such time (the “D&O Tail”). The D&O Tail shall provide that the D&O Tail shall be the insurer of first resort with respect to the D&O Indemnitees (i.e., its obligations to the D&O Indemnitees are primary and any duplicative, overlapping or corresponding obligations of the Company Group are secondary) and that the D&O Indemnitees shall not be required to seek indemnification from the Company Group prior to making a claim against the D&O Tail. The costs of the D&O Tail will be a Transaction Expense payable at Closing to the extent such costs are not paid prior to Closing.
(c) This Section 8.6(c) (A) shall survive the Closing, (B) is intended to benefit and may be enforced by the Company, Buyer and the D&O Indemnitees, and any heir of the D&O Indemnitees, and (C) shall be binding on all successors and assigns of Buyer and the Company (following the Closing). The respective obligations of Buyer and the Company (following the Closing) under this Section 8.6(c) shall not be terminated or modified in such a manner as to adversely affect the rights of any D&O Indemnitee to whom this Section 8.6(c) applies unless (x) such termination or modification is required by applicable Law (and then only to the extent so required) or (y) the affected D&O Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the D&O Indemnitees to whom this Section 8.6(c) applies shall be third-party beneficiaries of this Section 8.6(c)).
(d) In the event that, after the Closing Datethat Buyer, the Company or Buyer or any of their respective Subsidiaries (following the Closing) or any of their respective successors or assigns (i) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of Buyer and the Company, its Subsidiaries Company (following the Closing) or Buyer, as the case may be, transferee of such properties and assets shall expressly assume and be responsible for all of the obligations thereof set forth in this Section 5.48.6(d).
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to From and after the extent required by law (i) Buyer will not take any action (including Closing, Parent shall indemnify and hold harmless the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer officers and directors of the Company Parent and its Subsidiaries subsidiaries (each, together with such person’s heirs, executors or administrators, an “D&O Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of acts or omissions with their serving in capacity as such capacities occurring at or prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries Closing or related to honor, and, this Note Purchase Agreement to the fullest extent reasonably possible, shall exercise permitted by the voting, governance DGCL or any other applicable law or provided under the Parent’s Certificate of Incorporation and contractual powers available to Bylaws as in effect on the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms date of any indemnification agreements.
(b) this Note Purchase Agreement. For a period of six (6) years after the Closing DateClosing, Buyer Parent shall cause to be maintained in effect provisions in the Parent’s Certificate of Incorporation and Bylaws (or in such documents of any successor to the business of the Parent) regarding indemnification of directors and officers and advancement of expenses that, solely to the extent affecting the D&O Indemnified Parties (in their capacity as such) are no less advantageous to the D&O Indemnified Parties than the corresponding provisions in the Parent’s Certificate of Incorporation and Bylaws as in effect on the date of this Note Purchase Agreement.
(b) Prior to the Closing, Parent shall obtain and fully pay the premium for the non-cancellable “tail” insurance policies with respect to Parent’s existing directors’ and officers’ insurance policies and Parent’s existing fiduciary liability insurance to policies (collectively, “D&O Insurance”), in each case for a minimum limit claims reporting or discovery period of US$50 million at least six (6) years from and after the Closing with respect to claims arising from or any claim related to facts any period of time at or events prior to the Closing from an insurance carrier with the same or better credit rating as the Parent’s current insurance carrier with respect to D&O Insurance with benefits and levels of coverage that are no less favorable than the benefits and levels of coverage provided under the Parent’s existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Parent or any of its subsidiaries by reason of him or her serving in such capacity that existed or occurred at or before prior to the Closing (including in connection with this Note Purchase Agreement or the transactions or actions contemplated hereby). If the Parent for any reason fails to obtain such “tail” insurance policies as of the Closing.
(c) In , the event thatParent shall continue to maintain in effect, for a period of at least six years from and after the Closing DateClosing, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and D&O Insurance in either such case, proper provisions shall be made so that the successors and assigns place as of the Company, its Subsidiaries date hereof with the Parent’s current insurance carrier or Buyer, with an insurance carrier with the same or better credit rating as the case may be, shall assume Parent’s current insurance carrier with respect to D&O Insurance with benefits and levels of coverage that are no less favorable than the obligations set forth benefits and levels of coverage provided under the Parent’s existing policies as of the date hereof. Notwithstanding anything to the contrary in this Section 5.4.
3.13(b), in no event will Parent expend a premium for such coverage in excess of 300 percent of the last annual premium paid by Parent for such insurance prior to the date hereof (d) The provisions of this Section 5.4 are intended to be for such amount, the benefit of“Maximum Amount”), and if such insurance coverage cannot be obtained at a premium equal to or less than the Maximum Amount, Parent shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesobtain the greatest coverage available for a cost not exceeding the Maximum Amount.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except 8.6.1. The Company agrees and agrees to the extent required by law (i) Buyer will not take any action (including the exercise cause its Subsidiaries to agree that all rights to indemnification, advancement of voting rights expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Ilijan Entities) so as to amendClosing Date, modify or repeal the provisions for indemnification that now exist in favor of any present and Person who prior to or on the Closing Date is or was a current or former employeedirector, agent138052556_15 manager, director officer or officer employee of the an Acquired Company and its Subsidiaries (eacheach a “D&O Indemnified Person”), together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained including as provided in the Organizational Documents of the an Acquired Company, its Subsidiaries or in any agreement between a D&O Indemnified Person and an Acquired Company listed on Schedule 8.6 hereto (an “Indemnity Agreement”), will survive the Ilijan EntitiesClosing and will continue in full force and effect for the six (6) year period following the Closing Date. In furtherance (and not in limitation of) the foregoing, for the six (6) year period following the Closing Date, the Company will cause the Acquired Companies to, and the Acquired Companies will (i) maintain in the Organizational Documents of each of the Acquired Companies provisions with respect to indemnification, advancement of expenses and exculpation from liability that in each such respect are at least as favorable to each D&O Indemnified Person as those contained in each Acquired Company’s respective Organizational Documents, as applicable, as in effect on the date hereof, which provisions will not be amended, repealed or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any D&O Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, Person and (ii) cause each Indemnity Agreement to continue in existence without termination, revocation, amendment or other modification (other than any expiration by its terms) that would adversely affect the rights thereunder of any D&O Indemnified Person.
8.6.2. On or before the Closing Date, in any case at the Sellers’ sole expense, the Buyer shall honorshall, and or shall cause the Company Acquired Companies to, purchase and its Subsidiaries to honor, and, to maintain in effect beginning on the extent reasonably possible, shall exercise the voting, governance Closing and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Datethereafter without any lapses in coverage, Buyer shall cause to be maintained in effect a “runoff” or “tail” policy (or policies) providing directors’ and officers’ liability insurance to a minimum limit coverage, employment practices liability coverage and fiduciary liability coverage for the benefit of US$50 million those Persons who are covered by any Acquired Company’s directors’ and officers’ liability insurance, employment practices liability insurance and fiduciary liability insurance policies as of the date hereof or at the Closing with respect to claims arising from matters occurring prior to the Closing (a “D&O Tail Policy”). Such policy (or related policies) shall (i) be on terms with respect to facts coverage, retentions, amounts and other material terms at least as favorable to such D&O Indemnified Persons as those of such policies in effect on the date hereof and (ii) prior to any such purchase, shall be subject to the Sellers’ Representative’s prior consent (not to be unreasonably withheld, conditioned or events that occurred at or before the Closingdelayed).
8.6.3. If any Acquired Company (c) In the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective its successors or assigns assigns) (ia) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (iib) transfers all or a substantial portion substantially all of its properties and assets to any personother Person (including by dissolution, liquidation, assignment for the benefit of creditors or similar action), then, and in either each such case, the Company will cause proper provisions shall provision to be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume such other Person fully assumes the obligations set forth in this Section 5.48.6.
(d) 8.6.4. The provisions of this Section 5.4 are intended to 8.6 shall survive the Closing. This Section 8.6 shall be for the irrevocable benefit of, and shall be enforceable by, in addition to Sellers, each D&O Indemnified Party, his or her heirs, executors or administrators Person and his or her other representativesrespective heirs, executors, administrators, estates, successors and assigns, and each such Person shall be an express intended third party beneficiary of this Agreement for such purposes. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 8.6 shall not be terminated, revoked, modified or amended in any way so as to adversely affect any Person referred to in the second sentence of this Section 8.6.4 without the written consent of such Person.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, Parent shall and, to the extent required applicable, shall cause the Surviving Entity and each of Parent’s other Subsidiaries to, to the fullest extent permitted by law applicable Law (iand, in the case of former directors and officers, to the extent permitted by the certificate of incorporation or formation, bylaws, operating agreements or other similar governing documents of Parent, the Company or such other Subsidiary, as applicable, in effect as of immediately prior to the Closing), indemnify, defend and hold harmless, and provide advancement of expenses to, each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of Parent or its Subsidiaries (the “Parent Indemnified Parties”) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, a director or officer of the Company and or its Subsidiaries (each, together with such person’s heirs, executors or administrators, an the “Company Indemnified PartyParties” and, collectivelycollectively with the Parent Indemnified Parties, the “Indemnified Parties”) contained against all losses, claims, damages, costs, expenses, liabilities, penalties or judgments or amounts that are paid in the Organizational Documents settlement of or in connection with any claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the Companyfact that such Person is or was a director or officer of Parent, its Subsidiaries the Company or the Ilijan Entitiesany of their respective Subsidiaries, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the terms Effective Time, whether asserted or claimed prior to, at or following, the Effective Time, including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby.
(b) From and after the Closing, Parent shall not, and shall cause the Surviving Entity and each of Parent’s other Subsidiaries not to, amend, repeal or otherwise modify the indemnification provisions of the certificate of incorporation or formation, bylaws, operating agreements or other similar governing documents of Parent, the Surviving Entity or any indemnification agreementssuch other Subsidiary, as applicable, as in such a effect at the Closing in any manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect individuals who at the Closing or as of their serving in such capacities immediately prior to the Closing were directors, officers, managers, employees or holders of equity interests of such Person. From and after the Closing, without the prior written consent of each affected Indemnified PartyParent shall assume, be liable for and (ii) Buyer shall honor, guaranty and stand surety for, and shall cause the Company Surviving Entity and its each of Parent’s other Subsidiaries to honor, andin accordance with their respective terms, to each of the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification covenants contained in this Section 5.11, without limit as to time. Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by an Indemnified Party in enforcing the Organizational Documents and terms of any indemnification agreementscovenants set forth in this Section 5.11.
(bc) For a period of six (6) years after Subject to the Closing Dateparameters set forth in this Section 5.11(c), Buyer the Surviving Entity shall, and Parent shall cause the Surviving Entity to, at no expense to be maintained the beneficiaries, either (i) continue to maintain in effect for six years from the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to a minimum limit of US$50 million the Company Indemnified Parties as the Company’s current directors’ and officers’ liability insurance and fiduciary liability insurance (the “Company Current Insurance”) with respect to claims arising from matters existing or related to facts or events that occurred occurring at or before prior to the ClosingEffective Time (including the transactions contemplated hereby), or (ii) purchase a six year extended reporting period endorsement with respect to the Company Current Insurance (a “Company Reporting Tail Endorsement”) and maintain this endorsement in full force and effect for its full term. To the extent purchased after the date hereof and prior to the Effective Time, such insurance policies shall be placed through such broker(s) and with such insurance carriers as may be specified by the Company and as are reasonably acceptable to Parent. Notwithstanding the foregoing, in no event shall Parent or the Surviving Entity be required to expend for any such policies contemplated by this Section 5.11(c) an annual premium (measured for purposes of any “tail” by reference to 1/6th the aggregate premium paid therefor) amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Entity shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Notwithstanding the first and second sentences of this Section 5.11(c), but subject to the third sentence of this Section 5.11(c), the Company shall be permitted at its sole and exclusive option to purchase a Company Reporting Tail Endorsement prior to the Effective Time.
(cd) Subject to the parameters set forth in this Section 5.11(d), Parent shall, at no expense to the beneficiaries, either (i) continue to maintain in effect for six years from the Effective Time directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Parent Indemnified Parties as Parent’s current directors’ and officers’ liability insurance and fiduciary liability insurance (the “Parent Current Insurance”) with respect to matters existing or occurring at or prior to the Effective Time (including the transactions contemplated hereby), or (ii) purchase a six year extended reporting period endorsement with respect to the Parent Current Insurance (a “Parent Reporting Tail Endorsement”) and maintain this endorsement in full force and effect for its full term. Such insurance policies shall be placed through such broker(s) and with such insurance carriers as may be specified by Parent and as are reasonably acceptable to the Company. Notwithstanding the foregoing, in no event shall Parent expend for any such policies contemplated by this Section 5.11(d) an annual premium (measured for purposes of any “tail” by reference to 1/6th the aggregate premium paid therefor) amount in excess of 300% of the annual premiums currently paid by Parent for such insurance without the prior written consent of the Company; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Notwithstanding the first and second sentences of this Section 5.11(d), but subject to the third sentence of this Section 5.11(d), Parent shall be permitted at its sole and exclusive option to purchase a Parent Reporting Tail Endorsement prior to the Effective Time.
(e) In the event thatthat Parent, the Surviving Entity or any other Subsidiary of Parent after the Closing DateClosing, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns assigns, (i) consolidates with or merges into any other person Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger merger, or (ii) transfers all or a substantial portion substantially all of its properties and assets to any personPerson, then, then and in either such case, Parent shall make proper provisions shall be made provision so that the successors and assigns of Parent, the Company, its Subsidiaries Surviving Entity or Buyerthe applicable Subsidiary, as the case may be, shall assume the obligations set forth in this Section 5.45.11.
(df) The provisions of this Section 5.4 are intended to be for 5.11 shall survive the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesconsummation of the Closing.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except 9.6.1 the Buyer, RHP and the Acquired Companies agree that all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Ilijan Entities) so as to amendClosing Date, modify or repeal the provisions for indemnification that now exist in favor of any present and Person who prior to or on the Closing Date is or was a current or former director, manager, member, general partner, officer or employee of RHP or an Acquired Company, or who at the request of RHP or an Acquired Company served prior to or on the Closing Date as a director, officer, member, manager, employee, agent, director trustee or officer fiduciary of the Company and its Subsidiaries any other entity of any type (each, together with such person’s heirs, executors or administrators, an each a “D&O Indemnified Party” and, collectively, the “Indemnified PartiesPerson”) contained provided in the Organizational Documents of the RHP or an Acquired Company, its Subsidiaries or in any agreement between a D&O Indemnified Person and RHP or an Acquired Company set forth on Section 9.6.1 of the Ilijan EntitiesDisclosure Letter (an “Indemnity Agreement”) will survive the Closing and will continue in full force and effect for the six (6) year period following the Closing Date. In furtherance (and not in limitation of) the foregoing, for the six (6) year period following the Closing Date, the Buyer will cause the Acquired Companies to, and the Acquired Companies will (a) not amend, repeal or the terms of otherwise modify in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any D&O Indemnified Parties Person the provisions with respect to be indemnified in respect indemnification, advancement of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, expenses and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained exculpation from liability in the Organizational Documents of RHP and terms each of any indemnification agreements.
the Acquired Companies and (b) For continue in existence each Indemnity Agreement without termination, revocation, amendment or other modification that would adversely affect the rights thereunder of any D&O Indemnified Person.
9.6.2 On or before the Closing Date, RHP will obtain (and RHP and the Buyer shall split evenly the costs of obtaining) for the Acquired Companies, and, for a period of six (6) years after year period following the Closing Date, the Buyer shall will cause to be maintained in effect effect, with no lapse in coverage, one or more “tail” or “runoff” directors’ and officers’ liability and employment practices liability insurance to a minimum limit policies covering actual or claimed acts or omissions of US$50 million with respect to claims arising from or related to facts or events that occurred at any D&O Indemnified Person occurring on or before the Closing.
(c) In the event that, after the Closing Date, in each case on terms with respect to coverage, retentions, amounts and other material terms no less favorable in the aggregate to such D&O Indemnified Persons as those of such policies in effect as of the date hereof.
9.6.3 If any Acquired Company or Buyer (or any of their respective Subsidiaries or any of their respective its successors or assigns assigns) (ia) consolidates with or merges into any other person Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (iib) transfers all or a substantial portion substantially all of its properties and assets to any personother Person (including by dissolution, liquidation, assignment for the benefit of creditors or similar action), then, and in either each such case, the Buyer will use its reasonable best efforts to cause proper provisions shall provision to be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume such other Person fully assumes the obligations set forth in this Section 5.49.6.
9.6.4 In any Action involving a D&O Indemnified Person and one or more other D&O Indemnified Persons, a D&O Indemnified Person shall have the right and obligation to control such D&O Indemnified Person’s defense of the Action, or at the sole election of the D&O Indemnified Person, to tender control of the defense to the Buyer; provided, however, that if all D&O Indemnified Persons do not tender control of the defense to the Buyer, such D&O Indemnified Persons shall reasonably cooperate with each other to retain a single law firm (dand, if reasonable under the circumstances, one local law firm) to represent such D&O Indemnified Persons; provided, further, however, that, if the D&O Indemnified Persons are unable to agree on a single law firm within thirty (30) days of the filing of such Action, the Buyer (or its designee) shall have the right to select counsel reasonably acceptable to the D&O Indemnified Persons (which acceptance shall not be unreasonably withheld, conditioned, or delayed) for the defense of such Action; provided, further, however, that a D&O Indemnified Person shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel) at the Buyer’s expense if (a) a D&O Indemnified Person or such law firm reasonably concludes the use of such law firm to represent such D&O Indemnified Person and any other D&O Indemnified Persons would present such counsel with an actual or potential conflict of interest or other significant divergence of interest, (b) a D&O Indemnified Person or such law firm reasonably concludes that there may be one or more legal defenses available to such D&O Indemnified Person that are different from or in addition to those available to the other D&O Indemnified Persons, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, it being understood and agreed by the parties that the fewest number of counsels necessary to avoid such conflicts of interest shall be used. In the event that defense of a matter is tendered to the Buyer, all D&O Indemnified Persons tendering such matter will cooperate in the defense of any such matter, and the Buyer shall not, without the prior written consent of such D&O Indemnified Persons, settle any Action in any manner that would: (x) impose any fine or other obligation on such D&O Indemnified Persons, including an admission of culpability on behalf of such D&O Indemnified Persons; or (y) not include a full release of such D&O Indemnified Persons from all liability in respect of such Action, which release shall be in form and substance reasonably satisfactory to the D&O Indemnified Persons. In the event that any D&O Indemnified Person controls his or her own defense, the Buyer and the applicable Acquired Company shall not be liable for any settlement effected by such D&O Indemnified Person without the Buyer’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. The Buyer and the Acquired Companies shall not have any obligation hereunder to such D&O Indemnified Person to the extent that a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such D&O Indemnified Person in the manner contemplated hereby is prohibited by applicable Legal Requirements.
9.6.5 The provisions of this Section 5.4 are intended to 9.6 shall survive the Closing. This Section 9.6 shall be for the irrevocable benefit of, and shall be enforceable by, in addition to Sellers, each D&O Indemnified Party, his or her heirs, executors or administrators Person and his or her respective heirs, executors, administrators, estates, successors and assigns, and each such Person shall be an express intended third party beneficiary of this Agreement for such purposes. The Buyer shall pay, or shall cause the Acquired Companies to pay, as and when incurred by any Person referred to in the immediately preceding sentence, all fees, costs, charges and expenses incurred by such Person in enforcing such Person’s rights under this Section 9.6. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 9.6 shall not be terminated, revoked, modified or amended in any way so as to adversely affect any Person referred to in the second sentence of this Section 9.6.5 without the written consent of such Person. With respect to any right to indemnification or advancement for actual or claimed acts or omissions occurring prior to or on the Closing Date, each Acquired Company, as and if applicable, shall be the indemnitor of first resort, responsible for all such indemnification and advancement that any D&O Indemnified Person may otherwise have rights to from any direct or indirect equity holder of any of the Acquired Companies (or any Affiliate of such equity holder) and without right to seek subrogation, indemnity or contribution. Each of the Acquired Companies and the Buyer further agrees that no advance or prepayment by any party other representativesthan the Acquired Companies as the primary indemnitor on behalf of any D&O Indemnified Person with respect to any claim for which such D&O Indemnified Person has sought indemnification from any of the Acquired Companies shall affect the foregoing and that any such secondary indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all the rights of recovery of the D&O Indemnified Person against the Acquired Companies and the Acquired Companies hereby irrevocably release any such secondary indemnitor from, and irrevocably waive and relinquish any right to assert against any such secondary indemnitor, any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. Each of the Acquired Companies, the Buyer, and the D&O Indemnified Persons agrees that the secondary indemnitors are express third party beneficiaries of this Section 9.6.5.
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Directors’ and Officers’ Indemnification and Insurance. (a) Except The Purchaser agrees that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the extent required by law (i) Buyer will not take any action Closing, whether asserted or claimed prior to, at or after the Closing (including the exercise of voting rights any matters arising in connection with the Ilijan Entitiestransactions contemplated by this Agreement), now existing in favor of the current or former directors or officers of the Company or its Subsidiaries in their capacities as such (the “Indemnitees”) so as to amend, modify provided in the respective certificates of incorporation or repeal the provisions for indemnification of any present and former employee, agent, director by-laws (or officer equivalent organization documents) of the Company and its Subsidiaries or in any agreement set forth in Section 5.14(a) of the Company Disclosure Schedule, in each case as in effect as of the date of this Agreement (eachthe “Indemnification Provisions”), together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectivelyshall survive the Closing and shall continue in full force and effect. Following the Closing, the “Indemnified Parties”) contained in the Organizational Documents Purchaser (for so long as it holds a majority of the outstanding voting securities of or otherwise controls the Company) shall cause the Company to indemnify, its Subsidiaries defend and hold harmless, and advance expenses to, the Indemnitees with respect to all acts or the Ilijan Entities, or the terms of omissions by them in their capacities as such at any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities time prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the fullest extent reasonably possible, shall exercise required by the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsIndemnification Provisions.
(b) For The Purchaser (for so long as it holds a majority of the outstanding voting securities of or otherwise controls the Company) shall cause the Company to provide, for a period of not less than six (6) years after the Closing Date, Buyer shall cause to be maintained in effect the Indemnitees who are insured under the Company’s directors’ and officers’ liability insurance and indemnification policies set forth in Section 5.14(b) of the Company Disclosure Schedule (the “Current D&O Policies”) with insurance coverage under renewals of the Current D&O Policies and/or under separate “tail policies” with insurers reasonably believed by the Purchaser to a minimum limit of US$50 million with respect to claims arising from or related to facts or be reputable and financially sound for events that occurred occurring at or before prior to the ClosingClosing Date (the “D&O Insurance”) that is at least as favorable, in the aggregate, to the Indemnitees than the Current D&O Policies; provided, however, that the Purchaser shall not be required to cause the Company to pay an annual premium for the D&O Insurance in excess of 350% (the “Specified Percentage”) of the last annual premium paid by the Company prior to the date hereof for the Current D&O Policies; provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Purchaser (for so long as it holds a majority of the outstanding voting securities of or otherwise controls the Company) shall cause the Company to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) In The Indemnitees to whom this Section 5.14 applies shall be third party beneficiaries of this Section 5.14. The provisions of this Section 5.14 are intended to be for the event thatbenefit of and enforceable by each Indemnitee and his or her successors, after the Closing Dateheirs or representatives. The indemnification and insurance rights provided for herein shall not be deemed exclusive of any other rights to which an Indemnitee is entitled, whether pursuant to Law, contract or otherwise.
(d) If the Company or Buyer or any of their respective Subsidiaries the Purchaser or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or a substantial portion substantially all of its properties and assets to any personindividual, corporation or other entity, then, and in either each such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries Company or Buyerthe Purchaser, as the case may be, shall assume all of the obligations set forth in this Section 5.45.14.
(de) The Purchaser acknowledges that the Company currently is negotiating, and expects to enter into shortly, new directors’ and officers’ insurance and indemnification policies. Promptly thereafter, the Company and the Purchaser shall negotiate in good faith to amend the provisions of this Section 5.4 are intended 5.14(b) to be take into account the terms and premiums of such new policies, including adjustment of the Specified Percentage to take into account any increase in the premiums payable for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativessuch new policies.
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Directors’ and Officers’ Indemnification and Insurance. The Merger Agreement provides for indemnification, advancement of expenses, exculpation from liabilities and insurance rights in favor of the current and former directors and officers of Juno and its subsidiaries, and any director or officer of Juno TABLE OF CONTENTS and its subsidiaries who commences serving in such capacity following the date of the Merger Agreement and prior to the Effective Time, whom we refer to as “indemnitees,” with respect to acts or omissions occurring at or prior to the Effective Time (a) Except whether asserted or claimed prior to, at or after the Effective Time). Specifically, Celgene has agreed that all rights to indemnification, exculpation and advancement of expenses in favor of indemnitees as provided in governing or organizational documents, indemnification agreement or other similar agreements of Juno or its subsidiaries and specified in the Merger Agreement with respect to all matters occurring prior to or at the Effective Time will continue in full force and effect in accordance with their respective terms for a period of six years from and after the Effective Time (the “Indemnity Period”). In addition, Celgene has agreed that during the Indemnity Period Celgene will cause the Surviving Corporation to indemnify and hold harmless each individual who is as of the date of the Merger Agreement, or who becomes prior to the Effective Time, a director or officer of Juno who is as of the date of the Merger Agreement, or who thereafter commences prior to the Effective Time, serving at the request of Xxxx as a director or officer of another person (the “Indemnified Persons”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of the fact that the Indemnified Person is or was a director or officer of Juno or is or was serving at the request of Xxxx as a director or officer of another person, to the fullest extent permitted under applicable legal requirements. The Merger Agreement provides that each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding from the Surviving Corporation in accordance with the organizational documents and any indemnification agreements of the Surviving Corporation as in effect on the date of the Merger Agreement. If and only to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries DGCL or the Ilijan Entities, Surviving Corporation’s organizational documents or the terms of any indemnification agreements, any Indemnified Person to whom expenses are advanced may be required to provide an undertaking to repay such advances if it is ultimately determined by final adjudication that such Indemnified Person is not entitled to indemnification. Further, the Surviving Corporation will reasonably cooperate in such a manner as would adversely affect the rights defense of any such matter. If an Indemnified Parties to be indemnified Person is prohibited in respect a written contract with Juno or any of their serving in such capacities prior to the Closing, its subsidiaries from effecting a settlement without the prior consent of Juno or one of its subsidiaries, neither the Surviving Corporation nor any of its affiliates (including Celgene) shall be liable for any settlement effected without their prior written consent of each affected Indemnified Party(which consent shall not be unreasonably withheld, delayed or conditioned). For the Indemnity Period, Celgene and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries Surviving Corporation have agreed to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreements.
(b) For a period of six (6) years after the Closing Date, Buyer shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Juno and its subsidiaries or provide substitute policies for the Surviving Corporation and its subsidiaries (and their current and former directors and officers who are currently covered by Xxxx’s existing policies), in either case of not less than the existing coverage and having other terms not less favorable to a minimum limit of US$50 million the insured persons than such insurance coverage currently maintained by Juno and its subsidiaries with respect to claims arising from facts or related events that occurred at or prior to the Effective Time; provided that neither Celgene nor the Surviving Corporation will be required to pay with respect to such insurance policies, in the aggregate for the entire Indemnity Period, an amount equal to more than 300% of the aggregate annual premium most recently paid by Juno and its subsidiaries for such insurance (the “Maximum Amount”). In lieu of the foregoing, prior to the Closing Date, Juno may purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Surviving Corporation and its subsidiaries (and their current and former directors and officers who are currently covered by Xxxx’s and its subsidiaries’ existing policies) to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the insurance coverage currently maintained by Juno and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Closing.
(c) In Effective Time, provided that the event that, after the Closing Date, the Company or Buyer or cost of any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and such tail policy shall not be exceed the continuing or surviving entity of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any person, then, and in either such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4Maximum Amount.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
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Directors’ and Officers’ Indemnification and Insurance. 7.9.1. PBI shall maintain, or shall cause Provident Bank to maintain, in effect for six years following the Effective Time, the current directors' and officers' liability insurance policies maintained by WCBI (aprovided, that PBI may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) Except with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall PBI be required to expend pursuant to this Section 7.9.1 more than 250% of the annual cost currently expended by WCBI with respect to 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, PBI shall maintain the most advantageous policies of directors' and officers' insurance obtainable for an annual premium equal to the Maximum Amount. In connection with the foregoing, WCBI agrees in order for PBI to fulfill its agreement to provide directors and officers liability insurance policies for six years to provide such insurer or substitute insurer with such reasonable and customary representations as such insurer may request with respect to the reporting of any prior claims.
7.9.2. In addition to Section 7.9.1, PBI shall indemnify, defend and hold harmless each person who is now, or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of WCBI or an WCBI Subsidiary (the "Indemnified Parties") against all losses, claims, damages, costs, expenses (including attorneys' fees), liabilities or judgments or amounts that are paid in settlement of or in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, or administrative (each a "Claim"), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a director, officer or employee of WCBI or a WCBI 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 permitted under Delaware (to the extent required not prohibited by law (i) Buyer will not take any action (including federal law), and WCBI's Certificate of Incorporation and Bylaws. PBI shall pay expenses in advance of the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification final disposition of any present and former employee, agent, director such action or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “proceeding to each Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior Party to the Closing, without the prior written consent of each affected Indemnified Party, and fullest extent permitted by Delaware (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possiblenot prohibited by federal law) upon receipt of an undertaking to repay such advance payments if the Indemnified Party shall be adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.9.2 upon learning of any Claim, shall exercise notify PBI (but the votingfailure so to notify PBI shall not relieve it from any liability which it may have under this Section 7.9.2, governance and contractual powers available except to the Company extent such failure materially prejudices PBI) and its Subsidiaries shall, if required by applicable law, deliver to cause PBI the Ilijan Entities undertaking referred to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsprevious sentence.
(b) For a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts or events that occurred at or before the Closing.
(c) 7.9.3. In the event that, after the Closing Date, the Company or Buyer that either PBI or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving bank or entity of such consolidation or merger or (ii) transfers all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions provision shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, PBI shall assume the obligations set forth in this Section 5.47.9.
(d) 7.9.4. The provisions obligations of PBI provided under this Section 5.4 7.9 are intended to be for enforceable against PBI directly by the benefit of, Indemnified Parties and their heirs and representatives and shall be enforceable bybinding on all respective successors and permitted assigns of PBI. PBI shall pay all reasonable costs, including attorneys' fees, that may be incurred by any Indemnified Party in successfully enforcing the indemnity and other obligations provided for in this Section 7.9 to the fullest extent permitted under applicable law. The rights of each Indemnified Party hereunder shall be in addition to Sellers, each any other rights such Indemnified Party, his or her heirs, executors or administrators and his or her other representativesParty may have under applicable law.
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Directors’ and Officers’ Indemnification and Insurance. (a) Except From and after the Effective Time, Parent shall cause the Surviving Corporation to the greatest extent required permitted by law Law (ia) Buyer will not take to indemnify and hold harmless, against any action costs or expenses (including the exercise of voting rights attorney’s fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with the Ilijan Entities) so any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and provide advancement of expenses (without requiring a preliminary determination as to amendthe ultimate entitlement to indemnification) to, modify or repeal the provisions for indemnification of any all past and present directors and former employee, agent, director or officer officers of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, in all of their capacities) (the “Indemnified PartiesPersons”) to the same extent such persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company’s Constituent Documents and indemnification agreements, if any, in existence on the date hereof with any Indemnified Persons and (b) to honor the provisions regarding elimination of liability of directors, indemnification of officers and directors and advancement of expenses contained in the Organizational Company’s Constituent Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any and indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities agreements immediately prior to the Closing, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsEffective Time.
(b) For From and after the Effective Time, Parent shall cause the Surviving Corporation to maintain for a period of six (6) years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (“D & O Insurance”) maintained by the Company; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, individually and in the aggregate, at least as protective and no less advantageous to a minimum limit of US$50 million the insured with respect to claims arising from or related to facts or events that occurred at on or before the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby); provided, further, that in no event shall the Surviving Corporation be required to expend in any one (1) year more than three hundred percent (300%) of the current annual premium expended by the Company and the Company Subsidiaries to maintain or procure such D & O Insurance immediately prior to the Effective Time (such three hundred percent (300%) amount, the “Maximum Annual Premium”); provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium. Alternatively, prior to the Effective Time, either Parent or, if Parent does not do so prior to three (3) Business Days prior to the Closing, the Company may purchase a six-year prepaid “tail” policy containing terms and conditions which are, individually and in the aggregate, at least as protective and no less advantageous to the insured than the D & O Insurance maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby); provided, however, that in no event shall any policy require payment of aggregate premiums for such insurance in excess of the aggregate Maximum Annual Premium for such six-year period. If such prepaid “tail” policy has been obtained by the Company, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by it and the Surviving Corporation.
(c) In The obligations of the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.8 applies without the continuing or surviving entity consent of such consolidation or merger or affected indemnitee (ii) transfers all or a substantial portion of its properties and assets it being expressly agreed that the indemnitees to any person, then, and in either such case, proper provisions whom this Section 6.8 applies shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions third-party beneficiaries of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives6.8).
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and the Surviving Corporation shall cause all rights to the extent required by law (i) Buyer will not take any action (including the exercise indemnification, advancement of voting rights expenses and exculpation now existing in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification favor of any present and or former employeedirector, agent, director officer or officer employee of the Company and or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained as provided in (i) the Company Organizational Documents or (ii) agreements between an Indemnified Party and the Company or one of its Subsidiaries (in effect as of the date of this Agreement), to survive the Merger and to continue in full force and effect for a period of not less than six years after the Effective Time or, if longer, for such period as is set forth in any applicable agreement with an Indemnified Party in effect on the date of this Agreement.
(b) Parent and the Surviving Corporation shall, jointly and severally, indemnify all Indemnified Parties to the fullest extent permitted by applicable Law with respect to all acts and omissions arising out of or relating to their services as directors, officers or employees of the Company, its Subsidiaries or another Person, if such Indemnified Party is or was serving as a director, officer or employee of such other Person at the Ilijan Entitiesrequest of the Company, whether asserted or claimed at or after or occurring before the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the Transactions or otherwise). If any Indemnified Party is or becomes involved in any Legal Action in connection with any matter subject to indemnification hereunder, then Parent and the Surviving Corporation shall, jointly and severally, advance as incurred any costs or expenses (including legal fees and disbursements), judgments, fines, losses, claims, damages or Liabilities (“Damages”) arising out of or incurred in connection with such Legal Action, subject to Parent’s or the terms Surviving Corporation’s, as applicable, receipt of any indemnification agreements, in an undertaking by or on behalf of such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without the prior written consent of each affected Indemnified Party, if required by the DGCL, to repay such Damages if it is ultimately determined under applicable Law that such Indemnified Party is not entitled to be indemnified. In the event of any such Legal Action, (i) each of Parent and the Surviving Corporation shall cooperate with the Indemnified Party in the defense of any such Legal Action and (ii) Buyer neither of Parent nor the Surviving Corporation shall honorsettle, and shall cause the Company and its Subsidiaries to honor, and, compromise or consent to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms entry of any judgment in any Legal Action pending or threatened in writing to which an Indemnified Party is a party (and in respect of which indemnification agreementscould be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Legal Action.
(bc) For a period of Parent and the Surviving Corporation shall, jointly and severally, maintain in effect for at least six (6) years after the Closing Date, Buyer shall cause to be maintained in effect Effective Time the current policies of directors’ and officers’ liability insurance to a minimum limit maintained by the Company or policies of US$50 million at least the same coverage and amounts containing terms and conditions that are no less advantageous with respect to claims arising from out of or related relating to facts events which occurred before or events that occurred at or the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the Transactions) so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 250% of the last annual premium paid by the Company for such insurance before the Closingdate of this Agreement (such 250% amount being the “Maximum Premium”). If Parent or the Surviving Corporation are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, then Parent and the Surviving Corporation shall, jointly and severally, instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in lieu of the arrangements contemplated by this Section 5.8(c), before the Effective Time, the Company shall be entitled to purchase a “tail” directors’ and officers’ liability insurance policy covering the matters described in this Section 5.8(c) and, if the Company elects to purchase such a policy before the Effective Time, then Parent and the Surviving Corporation’s obligations under this Section 5.8(c) shall be satisfied so long as Parent and the Surviving Corporation cause such policy to be maintained in effect for a period of six years following the Effective Time.
(cd) The covenants contained in this Section 5.8 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.
(e) In the event that, after that the Closing Date, the Company or Buyer Surviving Corporation or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion substantially all of its properties and assets to any person, then, and in either each such case, proper provisions the Surviving Corporation shall be made take all necessary action so that the successors and or assigns of the Company, its Subsidiaries or Buyer, as the case may be, Surviving Corporation shall assume succeed to the obligations set forth in this Section 5.45.8.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Samples: Merger Agreement (Annie's, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except The By-Laws of the Surviving Corporation shall contain the provisions that are set forth, as of the date of this Agreement, in the By-Laws of IVAX pertaining to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify or repeal the provisions for indemnification of directors, officers, employees, fiduciaries and agents, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any present and former employee, agent, director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as that would affect adversely affect the rights thereunder of individuals who at or at any Indemnified Parties to be indemnified in respect of their serving in such capacities time prior to the ClosingEffective Time were directors, without officers, employees, fiduciaries or agents of IVAX. IVAX NYCOMED shall guaranty the prior written consent obligations of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to Surviving Corporation under these provisions of the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsBy-Laws.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer IVAX NYCOMED shall cause to be maintained in effect the current directors’ ' and officers’ ' liability insurance policies maintained by IVAX and Hafslund Nycomed (provided that IVAX NYCOMED may, and in the event of the cancellation or termination of such policies IVAX NYCOMED shall, substitute therefor policies reasonably satisfactory to a minimum limit the indemnified parties of US$50 million at least the same coverage containing terms and conditions which are no less advantageous) with respect to claims arising from or related to facts or events that occurred at or before prior to the ClosingEffective Time.
(c) In This Section 9.04 is intended to be for the event thatbenefit of, after the Closing Dateand shall be enforceable by, the indemnified parties, their heirs and personal representatives and shall be binding on IVAX NYCOMED and the Surviving Corporation and their respective successors and assigns.
(d) Notwithstanding anything to the contrary contained herein, the Surviving Company or Buyer shall, and IVAX NYCOMED shall cause the Surviving Company to, assume and perform all obligations of IVAX arising under each Indemnification Agreement entered into, prior to the date hereof, between IVAX and certain officers and directors of IVAX.
(e) If IVAX NYCOMED or any of their respective Subsidiaries or any of their respective its successors or assigns (i) consolidates shall consolidate with or merges merge into any other person corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers shall transfer all or a substantial portion substantially all of its properties and assets to any personindividual, thencorporation or other entity, then and in either each such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, IVAX NYCOMED shall assume all of the obligations set forth in this Section 5.49.04.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except to The Final Surviving Entity and its Subsidiaries shall (and Parent shall cause the extent required by law Final Surviving Entity and its Subsidiaries to) honor and fulfill in all respects the obligations of the Company and its Subsidiaries under (i) Buyer will not take the certificate of incorporation and bylaws (or other similar organizational documents) of the Company and its Subsidiaries as in effect on the date hereof and (ii) any action (including and all agreements for indemnification, exculpation of liability and/or advancement of expenses in effect as of the exercise date hereof between the Company or any of voting rights in connection with the Ilijan Entities) so as to amend, modify its Subsidiaries and any of their respective current or repeal the provisions for indemnification of former directors and officers and any present and former employee, agent, person who becomes a director or officer of the Company and or any of its Subsidiaries prior to the Effective Time (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”). In addition, for a period of six (6) contained years following the Effective Time, the Final Surviving Entity and its Subsidiaries shall (and Parent shall cause the Final Surviving Entity and its Subsidiaries to) cause the certificate of formation (and other similar organizational documents) of the Final Surviving Entity and its Subsidiaries to contain provisions with respect to indemnification, exculpation from liability and the advancement of expenses that are at least as favorable as the indemnification, exculpation from liability and advancement of expense provisions set forth in the Organizational Documents certificate of incorporation and bylaws (or other similar organizational documents) of the Company, Company and its Subsidiaries as of the date hereof, and during such six (6) year period, such provisions shall not be amended, repealed or the Ilijan Entities, or the terms of otherwise modified in any indemnification agreements, in such a manner as that would adversely affect the rights thereunder of any Indemnified Parties to be indemnified in respect of their serving in individuals who were covered by such capacities prior to the Closingprovisions, without the prior written consent of each affected Indemnified Party, and (ii) Buyer shall honor, and shall cause the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms of any indemnification agreementsexcept as required by applicable Law or Order.
(b) For a period of six (6) years after the Closing DateEffective Time, Buyer Parent and the Final Surviving Entity shall cause to be maintained maintain in effect the Company’s current directors’ and officers’ officer’s liability insurance to a minimum limit (“D&O Insurance”) in respect of US$50 million with respect to claims arising from acts or related to facts omissions occurring or events that occurred existing at or before prior to the Closing.
(c) In Effective Time, provided, however, that Parent and the event thatFinal Surviving Entity may, after the Closing Dateat their option, substitute policies of Parent, the Company or Buyer Final Surviving Entity or any of their respective Subsidiaries with containing terms with respect to coverage and amounts no less favorable, in the aggregate, to the Indemnified Parties than the D&O Insurance, provided, further, however, that, in satisfying its obligations under this Section 6.12(b), Parent and the Final Surviving Entity shall not be obligated to pay annual premiums in excess of two hundred percent (200%) of the amount paid by the Company for coverage for its last fiscal year (such two hundred percent (200%) amount, the “Maximum Annual Premium”) (which premiums the Company represents and warrants to be as set forth in Section 6.12 of the Company Disclosure Schedule), provided that if the annual premiums of such insurance coverage exceed such amount, Parent and the Final Surviving Entity 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, the Company may purchase a six-year “tail” prepaid policy (the “Tail Policy”) on the D&O Insurance which Tail Policy shall (i) be on terms and conditions with respect to coverage and amounts no less favorable, in the aggregate, than the D&O Insurance, (ii) be for an amount not to exceed the Maximum Annual Premium and (iii) name Parent as a successor-in-interest of such Tail Policy. In the event that the Company purchases the Tail Policy prior to the Effective Time, Parent and the Final Surviving Entity 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 Final Surviving Entity under the first sentence of this Section 6.12(b) for so long as such Tail Policy shall be maintained in full force and effect.
(c) If Parent, the Final Surviving Entity, any Subsidiaries of the Final Surviving Entity or any of their respective successors or assigns shall (i) consolidates consolidate with or merges merge into any other person Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers transfer all or a substantial portion substantially all of its properties and assets to any personPerson, then, and in either each such case, proper provisions shall be made so that the successors and assigns of Parent, the Company, its Subsidiaries or BuyerFinal Surviving Entity and/or any such Subsidiaries, as the case may beapplicable, shall assume all of the obligations set forth in of Parent, the Final Surviving Entity or its Subsidiaries, as applicable, under this Section 5.46.12.
(d) The provisions of obligations under this Section 5.4 6.12 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 the D&O Insurance or the “tail” policy referred to in Section 6.12(c) (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 6.12(c) (and their heirs and representatives) are intended to be for third party beneficiaries of this Section 6.12, with full rights of enforcement as if a party thereto. The rights of the benefit ofIndemnified Parties and other persons who are beneficiaries under the D&O Insurance or the “tail” policy referred to in Section 6.12(c) (and their heirs and representatives) under this Section 6.12 shall be in addition to, and shall be enforceable bynot in substitution for, any other rights that such 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 the Company or any of its Subsidiaries, or applicable Laws (whether at law or in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representativesequity).
Appears in 1 contract
Samples: Merger Agreement (NetApp, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) Except Buyer agrees that all rights to the extent required by law (i) Buyer will not take any action (including the exercise of voting rights in connection with the Ilijan Entities) so as to amend, modify exculpation and indemnification for acts or repeal the provisions for indemnification of any present and former employee, agent, director omissions occurring at or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents of the Company, its Subsidiaries or the Ilijan Entities, or the terms of any indemnification agreements, in such a manner as would adversely affect the rights of any Indemnified Parties to be indemnified in respect of their serving in such capacities prior to the Closing, without whether asserted or claimed prior to, at or after the prior written consent Closing (including any matters arising in connection with the transactions contemplated hereby), now existing in favor of each affected the current or former directors and officers, managers, employees, or agents (“D&O Indemnified PartyParties”), as the case may be, of either the Transferred Entities, Fund Vehicles, or their Subsidiaries as provided in their respective Organizational Documents as in effect on the date of this Agreement or in any Contract set forth on Section 7.11(a) of the Disclosure Schedule as of the date of delivery pursuant to Section 7.20(h) and (ii) subject to the limits therein shall survive the Closing and shall continue in full force and effect. Buyer shall honor, and shall cause the Company Transferred Entities’, Fund Vehicles’, and its Subsidiaries their Subsidiaries’ certificate of incorporation, bylaws, or other Organizational Documents to honorcontain provisions with respect to indemnification, and, advancement of expenses and limitation of directors and officers that are no less favorable to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained D&O Indemnified Parties than those set forth in the Transferred Entities’, Fund Vehicles’, and their Subsidiaries’ Organizational Documents and terms Fund Governance Documents, as the case may be, as of the Closing Date, which provisions thereafter will not be amended, repealed, or otherwise modified in any indemnification agreementsmanner that would disproportionately and adversely affect the rights thereunder of a D&O Indemnified Party as opposed to the other D&O Indemnified Parties without the consent of such D&O Indemnified Party adversely affected thereby.
(b) For Without limiting the provisions of Section 7.11(a), to the fullest extent that any Transferred Entity or Fund Vehicle would be permitted by applicable Law to do so and subject to the terms and limitations set forth as the date hereof in the Transferred Entities’, Fund Vehicles, and their Subsidiaries’ Organizational Documents and Fund Governance Documents, as the case may be, Buyer shall, to the extent within its control, cause the Transferred Entities and their respective Subsidiaries to, solely with recourse to the “tail” policy referenced in Section 7.11(c) indemnify and hold harmless each D&O Indemnified Party on the terms and subject to the limitations set forth as the date hereof in the Transferred Entities’, Fund Vehicles’, and their Subsidiaries’ Organizational Documents against and from any Losses and other amounts paid in settlement in connection with any claim, Legal Proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, Legal Proceeding or investigation arises out of or pertains to any alleged action or omission in such D&O Indemnified Party’s capacity as a director or officer of either a Transferred Entity, Fund Vehicle, or any of their Subsidiaries prior to the Closing. Notwithstanding anything to the contrary herein, neither Buyer, any Transferred Entity, Fund Vehicle, nor any of their Subsidiaries shall be liable for any settlement effected without their prior written consent, and neither of them shall be obligated to pay the fees and expenses of more than one legal counsel (selected by a plurality of the D&O Indemnified Parties) for all D&O Indemnified Parties in any jurisdiction with respect to any single legal action except to the extent that, on the advice of any such D&O Indemnified Parties’ counsel, two or more of such D&O Indemnified Parties shall have conflicting interests in the outcome of such action. Notwithstanding anything herein to the contrary, no D&O Indemnified Party shall be entitled to seek indemnification pursuant to the Fund Governance Documents, whether directly or through any insurance maintained by or for the benefit of such Fund Vehicles, in respect of any claim, Legal Proceeding or other action pursuant to the Transaction Documents (but excluding the Fund Governance Documents, to the extent such claim, Legal Proceeding or other action is unrelated to the transactions contemplated by this Agreement) or in connection with any claim for Losses that may be asserted by Buyer pursuant to this Agreement.
(c) Prior to the Closing, Buyer and CCOC shall purchase a “tail” directors’ and officers’ liability insurance and fiduciary insurance policy with a claims period of at least six (6) years after the Closing DateClosing, Buyer shall cause subject to be maintained the limitations set forth in effect the proviso to this Section 7.11(c), on terms and conditions no less advantageous to the D&O Indemnified Parties than the existing directors’ and officers’ liability insurance to a minimum limit and fiduciary insurance applicable to, and with comparable limits currently afforded to, the Transferred Entities, Fund Vehicles, and their Subsidiaries as of US$50 million with respect to the date of this Agreement, covering claims arising from facts, events, acts or related to facts or events omissions that occurred at or before prior to the Closing.
(c) In , including the event that, after the Closing Date, the Company or Buyer or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person transactions contemplated hereby and providing that such policy shall not be the continuing policy or surviving entity other indemnification obligation of such consolidation or merger or (ii) transfers all or a substantial portion of its properties and assets to any personfirst resort; provided that Buyer, thenon the one hand, and CCOC, on the other hand, shall share equally in either the cost of any such case, proper provisions policy up to an aggregate amount equal to 250% of the current directors’ and officers’ liability insurance and fiduciary insurance policy and Sellers shall be made so that the successors responsible for any excess amount or CCOC and assigns of the Company, its Subsidiaries or Buyer, as the case may be, Buyer shall assume the obligations set forth in this Section 5.4only be required to purchase a policy with a maximum coverage for such 250% premium.
(d) The D&O Indemnified Parties to whom this Section 7.11 applies shall be third-party beneficiaries of this Section 7.11. The provisions of this Section 5.4 7.11 are intended to be for the benefit of, and shall will be enforceable by, in addition to Sellers, each D&O Indemnified Party, his or her heirs, executors or administrators Party and his or her successors, heirs or representatives. Buyer shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other representativesrights under this Section 7.11 to the extent such D&O Indemnified Party is successful in such enforcement action. Notwithstanding any other provision of this Agreement, this Section 7.11 shall survive the Closing indefinitely.
(e) Sellers hereby agree and acknowledge that, except with respect to recourse to the “tail” policy reference in Section 7.11(c), Sellers are the indemnitors of first resort with respect to any D&O Indemnified Party in connection with their rights to indemnification and advancement of expenses set forth in this Section 7.11.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) Except Parent and Purchaser agree that all provisions relating to indemnification and exculpation now existing in favor of the current or former directors or officers (the “Indemnified Directors/Officers”) of the Company and Subsidiaries as provided in their respective certificates of incorporation or by-laws (or similar organizational documents) or agreements providing for indemnification and exculpation, and all rights to advancement of expenses, shall survive the Merger, shall not be amended to the detriment of Indemnified Directors/Officers and shall continue in full force and effect in accordance with their terms.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, protect, indemnify, defend and hold harmless to the fullest extent required by law (i) Buyer will not take any action permitted under Delaware Law the Indemnified Directors/Officers against all losses, claims, damages, liabilities, fees and expenses (including the exercise reasonable fees and disbursements of voting rights counsel and judgments, fines, losses, claims, liabilities and amounts paid in settlement) in connection with any claim, suit, action, proceeding or investigation that is, in whole or in part, based on or arising out of the Ilijan Entities) so as to amend, modify fact that such person is or repeal the provisions for indemnification of any present and former employee, agent, was a director or officer of the Company and its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and, collectively, the “Indemnified Parties”) contained in the Organizational Documents any of the Company, its Subsidiaries or was serving at the Ilijan Entities, request of the Company or the terms any of any indemnification agreements, in such a manner as would adversely affect the rights its Subsidiaries and arising out of any Indemnified Parties to be indemnified in respect of their serving in such capacities actions or omissions occurring at or prior to the ClosingEffective Time. In addition, without upon receipt from an Indemnified Director/Officer of (i) a written request for an advancement of fees or expenses incurred or to be incurred in the prior written consent defense of each affected Indemnified Partyany claim, suit, action, proceeding or investigation for which such director or officer is reasonably expected to be entitled to indemnification and (ii) Buyer a written undertaking by such director or officer to repay any such amounts if it shall honorultimately be determined that such director or officer is not entitled to indemnification therefor, Parent and the Surviving Corporation shall cause promptly advance such fees and expenses to such director or officer or pay such fees and expenses for such director or officer, all in advance of the Company and its Subsidiaries to honor, and, to the extent reasonably possible, shall exercise the voting, governance and contractual powers available to the Company and its Subsidiaries to cause the Ilijan Entities to honor, such provisions for indemnification contained in the Organizational Documents and terms final disposition of any indemnification agreementssuch matter.
(bc) For a period of six (6) years after the Closing DateEffective Time, Buyer the Surviving Corporation shall cause to be maintained maintain in effect directors’ and officers’ liability insurance to a minimum limit of US$50 million with respect to claims arising from or related to facts coverage covering the Indemnified Directors/Officers providing coverage for acts or events occurring on or prior to the Effective Time, on terms (including the amounts of coverage and the amounts of deductibles, if any) that occurred at are no less favorable to the terms now applicable to them under the Company’s current directors’ and officers’ liability insurance policies (copies of which have been furnished to Parent or before its Representatives); provided, however, that in no event shall the Closing.
(cSurviving Corporation be required to expend pursuant to this Section 6.06(c) In more than an amount per year equal to 300% of the event that, after the Closing Date, current annual premiums paid by the Company or Buyer or any for such insurance policies. If the provision and maintenance of their respective Subsidiaries or any coverage in accordance with this Section 6.06(c) would exceed 300% of their respective successors or assigns such current annual premiums, (i) consolidates with or merges into any other person and Parent shall not be notify the continuing or surviving entity Indemnified Directors/Officers of the amount of such consolidation or merger or excess and give such persons the opportunity to agree to reimburse the Surviving Corporation for the amount of such excess and, if and for so long as such reimbursement is made Parent and the Surviving Corporation, shall continue to provide and maintain the coverage contemplated by the first sentence of this Section 6.06(c); and (ii) transfers all or a substantial portion if and to the extent the Indemnified Directors/Officers do not agree to reimburse the Surviving Corporation in accordance with the immediately preceding clause (i), then the Surviving Corporation shall provide (at no cost to the Indemnified Directors/Officers) the greatest amount of its properties and assets to any person, then, and in either substantially equivalent insurance reasonably obtainable for 300% of such case, proper provisions shall be made so that the successors and assigns of the Company, its Subsidiaries or Buyer, as the case may be, shall assume the obligations set forth in this Section 5.4.
(d) The provisions of this Section 5.4 are intended to be for the benefit of, and shall be enforceable by, in addition to Sellers, each Indemnified Party, his or her heirs, executors or administrators and his or her other representatives.current annual
Appears in 1 contract
