Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company. (b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. (c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification). (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (Morton Acquisition Corp), Merger Agreement (Rohm & Haas Co), Merger Agreement (Rohm & Haas Co)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless each present and former director and officer of individuals the Company and each person who served at the Effective Time were directors, officers or employees request of the Company as a director, officer or trustee of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the "Indemnified Parties"), to the fullest extent permitted under applicable Law, 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 or fiduciary, including, without limitation, the transactions contemplated by this Agreement (and shall also advance, or cause to be advanced, expenses as incurred to the fullest extent permitted under applicable Law). Parent agrees that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's Certificate of Incorporation and By-Laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time. From and after the Effective Time, Parent shall assume the obligations of the Company to provide indemnification to Indemnified Parties under indemnification agreements or similar contracts.
(b) Without limiting or expanding the foregoing, in the event any claim, action, suit, proceeding or investigation (a "Claim") that is subject to Section 6.05(a) is brought against any Indemnified Party at or after the Effective Time, (i) the Indemnified Parties may retain counsel satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation, (ii) Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (iii) Parent and the Surviving Corporation will use all reasonable efforts to assist in the vigorous defense of any such matter, provided that neither Parent nor the Surviving Corporation shall be liable for any settlement of any Claim effected without its written consent, which consent, however, shall not be unreasonably withheld or delayed. Any Indemnified Party wishing to claim indemnification under this Section 6.05, upon learning of any such Claim, shall notify Parent (but the failure so to notify Parent shall not relieve Parent and the Surviving Corporation from any liability that either may have under this Section 6.05 except to the extent such failure materially prejudices them). The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless, under applicable standards of professional conduct, there is or would reasonably be expected to be a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) For a period of six years after the Effective Time, Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance policies maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing other terms and conditions which are not materially no less advantageous) with respect to matters claims arising from facts or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, ; provided further that Parent shall not be required to maintain such policies to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided annual premiums (or incremental annual premiums in the case of substitute policies that provide coverage to other Persons or for in this Section 6.7 is not prior to or in substitution other matters) exceed 200% of the most recent annual premium paid for any such claims under such policiespolicies by the Company.
Appears in 3 contracts
Samples: Merger Agreement (Careinsite Inc), Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Healtheon Webmd Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at Without limiting any additional rights that any Person may have under any agreement or Company Plan, from and after the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountTime, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer and director of the Company and its Subsidiaries (the "“Indemnified Parties"”), against any all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs or expenses (and expenses, including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities ’ fees and disbursements (collectively, "“Costs") ”), incurred in connection with any claim, action, suit, proceeding or investigationProceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties the fact that the Indemnified Party is or actions in their capacity as officers and directors and existing was an officer, director, employee, fiduciary or occurring at agent of the Company or prior to the Effective Timeits Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law Law and the Company’s Articles of Incorporation or Bylaws as at the date hereof. In the event of any such Proceeding, each Indemnified Party will be entitled to advancement of expenses incurred in the defense of the Proceeding from Parent or the Surviving Corporation within ten Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor to the extent as would be required under the Company’s Articles of Incorporation or Bylaws as at the date hereof and is permitted by the FBCA; 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; provided further that neither Parent nor the Surviving Corporation shall be required to indemnify or advance expenses to any Indemnified Party in connection with a Proceeding (or part thereof) initiated by such Indemnified Party unless such Proceeding (or part thereof) was or is authorized by the Board of Directors of Parent or the Surviving Corporation.
(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective articles of incorporation or bylaws (or comparable organizational documents) shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms.
(c) Parent shall, or shall cause the Surviving Corporation to, also advance fees obtain a six year “tail” insurance policy that provides coverage on terms no less favorable than the coverage provided under the Company’s directors and expenses (including reasonable attorneys' fees) as incurred officers insurance policy in effect on the date of this Agreement for the Persons who are covered by such policy on the date of this Agreement for events occurring prior to the fullest extent permitted under applicable law Effective Time; provided, however, neither Parent nor the Surviving Corporation shall be required to pay more than $5,000,000 to purchase such policy; and provided further, however, as an alternative, Parent and/or the person Surviving Corporation shall have opportunity to whom expenses purchase a substitute policy which (i) has an effective term of six years from the Effective Time, (ii) covers those persons who are advanced provides a customary undertaking complying with applicable law currently covered by the Company’s directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring on or prior to repay such advances if it is ultimately determined the Effective Time, and (iii) contains terms and conditions that such person is not entitled are no less favorable to indemnification)the insured than those of the Company’s directors’ and officers’ insurance policy in effect as of the date hereof.
(d) Nothing in this Agreement This covenant is intended toto be for the benefit of, and shall be construed to or shall releaseenforceable by, waive or impair any rights to directors' each of the Indemnified Parties and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood their respective heirs and agreed that the legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or otherwise.
(e) In the event that the Surviving Corporation or 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 majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 6.7 is not prior to or 6.6.
(f) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in substitution for any such claims under such policiessuccessfully enforcing the indemnity and other obligations provided in this Section 6.6.
Appears in 3 contracts
Samples: Merger Agreement (Kos Pharmaceuticals Inc), Merger Agreement (Jaharis Mary), Merger Agreement (Abbott Laboratories)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, to the fullest extent permitted under the DGCL, indemnify and hold harmless, each Person who is on the date hereof, was previously, or during the period from the date hereof through the date of individuals who at the Effective Time were directorswill be, officers serving as a director, officer, employee or employees agent of the Company or any Company Subsidiary or, at the request or for the benefit of the Company or any Company Subsidiary, as a director, trustee or officer of any other entity or any benefit plan (collectively, the “Indemnified Persons”), in the event of any threatened or actual Proceeding, whether civil, criminal or administrative, based on, or arising out of, or pertaining to the fact that the Indemnified Person is or was a director (including in a capacity as a member of any board committee), officer, employee or agent of the Company, any of the Company Subsidiaries or any of their respective predecessors prior to the Effective Time (including with respect to any acts, facts, events or omissions occurring in connection with the approval of this Agreement or any of the Transactions) (a “Claim”), whether in any case such Claim is made before, on or after the Effective Time against any expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Person in connection with any such threatened or actual Claim. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, advance expenses (including reasonable attorneys’ fees) incurred by an Indemnified Person who is on the date hereof, was previously, or during the period from the date hereof through the date of the Effective Time will be, serving as a director or officer of the Company in defending any Claim in advance of the final disposition of such Claim upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Company pursuant to this Section 7.8.
(b) Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification could be sought by an Indemnified Person hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such Claim or such Indemnified Person otherwise consents in writing to such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with an Indemnified Person in the defense of any matter for which such Indemnified Person could seek indemnification hereunder.
(c) For a period of six years after the Effective Time, the Surviving Corporation and each of its Subsidiaries shall, and Parent will cause the Surviving Corporation and each of its Subsidiaries to, cause to be maintained in effect provisions in the Constituent Documents of the Surviving Corporation and each of its Subsidiaries (or in such documents of any successor to the business of the Surviving Corporation or any of its Subsidiaries) regarding elimination of liability of directors, indemnification of officers, directors, employees and agents and advancement of expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in the Constituent Documents of the Company in existence on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals. From and after the Effective Time, any agreement of any Indemnified Person with the Company or any of its Subsidiaries regarding elimination of liability, indemnification or advancement of expenses shall be assumed by the Surviving Corporation, shall survive the Merger and shall continue in full force and effect in accordance with its terms.
(d) Prior to the Closing Date, the Company shall, or if the Company is unable to, Parent shall cause the Surviving Corporation as of or following the Effective Time to, purchase a six year prepaid “tail” policy on the current policies of the directors' ’ and officers' ’ liability insurance and fiduciary liability 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) (“D & O Insurance”); provided that the Company shall not pay, and the Surviving Corporation shall not be required to pay, for such “tail” policy more than 300% of the current annual premium paid by the Company for such D & O Insurance. If the Company or the Surviving Corporation shall for any reason fail to obtain such “tail” policy, the Surviving Corporation or Parent shall maintain for a period of six years after the Effective Time such D & O Insurance (provided that the Surviving Corporation or Parent (or any successor) may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not materially are, in the aggregate, no less advantageous) with respect to matters or events occurring prior advantageous to the Effective Time to the extent availableinsured); provided, however, provided that in no event shall the Surviving Corporation or Parent or the Company be required to expend pay in any one year more than an amount per year equal to 200300% of the current annual premiums premium paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such D & O Insurance; and, provided, further further, that if the annual premiums of such insurance coverage D & O Insurance 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.
(ce) For six years after the Effective Time, If Parent agrees that it will or will cause 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 property and assets to indemnify any Person, then, and hold harmless in each present such case, proper provision shall be made so that the applicable successor, assign or transferee shall assume the obligations set forth in this Section 7.8 (including this Section 7.8(e)).
(f) The obligations of Parent and former director and officer the Surviving Corporation under this Section 7.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 7.8 applies without the consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 7.8 applies shall be third party beneficiaries of this Section 7.8). The rights in this Section 7.8 shall survive consummation of the CompanyMerger and are intended to benefit, determined as of the Effective Time and shall be enforceable by, each Indemnified Person.
(the "Indemnified Parties")g) The Surviving Corporation shall, against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees pay all reasonable and expenses (documented out-of-pocket expenses, including reasonable attorneys' ’ fees) as , that may be incurred to by any Indemnified Person in enforcing the fullest extent permitted under applicable law indemnity and other obligations provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 7.8; provided that a court of competent jurisdiction has determined by a final, nonappealable order or judgment such Indemnified Person is not prior entitled to or in substitution for any such claims under such policiesindemnification hereunder.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.), Merger Agreement (Lantheus Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation Entity to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the MGCL or the LLC Act adopted after May 4, 2021 that increase the extent to which a corporation may indemnify its officers and directors), indemnify, defend and hold harmless each (and advance expenses, provided the Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such Person is not entitled to indemnification) the present and former director directors and officer officers of the CompanyCompany and the Company Subsidiaries, determined as of the Effective Time and any fiduciaries under any Company Benefit Plan (the "each an “Indemnified Parties"Party”), against any and all costs or expenses (including reasonable attorneys' fees’ fees and expenses), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, arising out of (in whole or in part), relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement or the transactions contemplated hereby or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Timetransactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time.
(b) From and after the Effective Time, Parent, the Surviving Entity and the Indemnified Parties shall cooperate in the defense of any actual or threatened claim, action, suit, proceeding or investigation relating to any circumstances, developments or matters in existence at or prior to the Effective Time, or acts or omissions occurring at or prior to the Effective Time for which indemnification could be sought by an Indemnified Party hereunder and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. From and after the Effective Time, Parent and the Surviving Entity shall not settle, compromise or consent to the entry of any judgment with respect to any actual or threatened claim, action, suit, proceeding or investigation described in the preceding sentence unless: (i) such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim; (ii)(A) such settlement, compromise or consent does not provide for any acknowledgement of fault or wrongdoing by any Indemnified Party and (B) the Surviving Entity reaffirms in writing its obligations to each Indemnified Party under this Section 6.8; or (iii) each Indemnified Party otherwise consents in writing to such settlement, compromise or consent (such consent not to be unreasonably withheld).
(c) The Constituent Documents of the Surviving Entity shall include provisions for indemnification, advancement of expenses and exculpation of the Indemnified Parties on the same basis as set forth in the Constituent Documents of the Company in effect on May 4, 2021. Following the Effective Time, the Surviving Entity shall, and Parent shall cause the Surviving Entity to, maintain in effect the provisions in its Constituent Documents providing for indemnification, advancement of expenses and exculpation of Indemnified Parties, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law (and Parent shallLaw, which provisions shall not be amended except as required by applicable Law or shall cause except to make changes permitted by applicable Law that would enlarge the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to scope of the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Indemnified Parties’ indemnification rights thereunder.
(d) Nothing If Parent or the Surviving Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Entity or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or clause (ii) of this sentence so that the successors and assigns of Parent or the Surviving Entity, as the case may be, shall assume all of the obligations set forth in this Agreement Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Entity shall comply with, and shall not, directly or indirectly, amend, modify, limit or terminate the advancement of expenses, exculpation and indemnification provisions of the agreements listed on Section 6.8(e) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Entity’s Constituent Documents.
(f) This Section 6.8 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be construed binding on all successors and assigns of Parent and the Surviving Entity. Each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Entity, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification, then Parent or the Surviving Entity shall releasepay such Indemnified Party’s costs and expenses, waive or impair including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Entity. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to any rights to directors' and officers' insurance claims such Indemnified Parties may have under the Constituent Documents of the Company, the Constituent Documents of any of the Company Subsidiaries or the Surviving Entity or under any policy that applicable Contracts, insurance policies or Laws.
(g) Following the Effective Time, the Surviving Entity shall, and Parent shall cause the Surviving Entity to, maintain with reputable and financially sound carriers the extension of the Company’s existing D&O Insurance, for a claims reporting or discovery period (whichever is or has been in existence greater) of six (6) years from and after the Effective Time with respect to the Company any claim arising from facts or any of its officers, directors events that existed or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not occurred at or prior to or in substitution for any such claims the Effective Time with terms, conditions, retentions, coverage limits and limits of liability that are at least as favorable as the coverage provided under such policiesthe Company’s existing D&O Insurance.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Directors’ and Officers’ Indemnification and Insurance. (a) The Certificate of Incorporation and By-Laws of the Surviving Corporation shall contain the provisions with respect to indemnification set forth in the Constituent Documents on the date hereof, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of the individuals who at any time prior to the Effective Time were directors, directors or officers or employees of the CompanyCompany in respect of actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement).
(b) Parent shall cause to be maintained in effect for six years The Company shall, and from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to shall, indemnify and hold harmless each present and former director and director, officer or employee of the Company, determined as Company or any of the Effective Time Subsidiaries (collectively, the "Indemnified Parties"), ) against any costs or expenses (including reasonable attorneys' feesfees and disbursements), judgments, fines, losses, claims, damages or and liabilities (collectively, "Costs") incurred in connection with with, and amounts paid in settlement of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, brought or filed (x) arising out of or pertaining to matters relating the transactions contemplated by this Agreement or (y) otherwise with respect to their duties any acts or actions in their capacity as officers and directors and existing omissions or alleged acts or omissions occurring at or prior to the Effective Time to the same extent as such persons are entitled to indemnification as of the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law and the Constituent Documents or indemnification agreements in effect on the date hereof and listed in Section 3.10 of the Disclosure Schedule, including provisions relating to the advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time must be reasonably satisfactory to the Surviving Corporation, and Parent shall, or shall cause (ii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). The Indemnified Parties as a group may retain only one law firm to represent them with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The indemnity agreements of the Surviving Corporation in this Section 6.07 shall extend, on the same terms to, also advance fees and expenses shall inure to the benefit of and shall be enforceable by, each person or entity who controls, or in the past controlled, any present or former director, officer or employee of the Company or any of the Subsidiaries.
(c) Not later than 30 days after the consummation of the Offer, the Surviving Corporation shall procure, at no expense to the beneficiaries, directors' and officers' liability insurance policies (the "New Insurance") covering for a period of six years after the Effective Time those persons who are currently covered by the Company's directors' and officers' liability insurance policies (the "Current Insurance") and providing coverage (including reasonable attorneys' feesamounts of coverage, amounts of deductibles, employment practices liability and other terms) as incurred that are no less favorable than the terms contained in the Current Insurance; provided, however, that the Surviving Corporation shall not be required to expend annually for the New Insurance amounts in excess of 200% of the per annum premiums paid by the Company for the Current Insurance for the policy year that includes the date of this Agreement, and provided further, that if the annual premiums for the New Insurance exceed such 200% amount, then the Surviving Corporation shall be obligated to obtain a policy with the greatest amount of coverage available for a cost not exceeding such 200% amount. The Surviving Corporation will maintain the New Insurance continuously in effect for such six year period and will not cancel the Current Insurance unless and until the New Insurance has been procured. If the New Insurance is provided under any insurance policies other than a "run-off" of the Company's existing insurance policies, then such new policies shall be in form and substance and with insurance carriers reasonably satisfactory to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Continuing Directors.
(d) Nothing in this Agreement This Section 6.07 shall survive the consummation of the Merger at the Effective Time, is intended toto benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be construed to binding on all successors and assigns of the Surviving Corporation and shall be enforceable by the Indemnified Parties.
(e) If the Surviving Corporation 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 Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers or conveys all or substantially all of its officersproperties and assets to any person, directors or employeesthen, it being understood and agreed in each such case, to the extent necessary to effectuate the purposes of this Section 6.07, proper and sufficient provision shall be made so that the indemnification provided for successors and assigns of the Surviving Corporation or Parent shall succeed to the obligations set forth in this Section 6.7 6.07, and none of the actions described in clauses (i) or (ii) of this sentence shall be taken until such provision is not prior to or in substitution for any such claims under such policiesmade.
Appears in 3 contracts
Samples: Merger Agreement (Citigroup Inc), Merger Agreement (Pamida Holdings Corp/De/), Merger Agreement (Shopko Stores Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, the Surviving Corporation shall, and Parent agrees that it will or will shall cause the Surviving Corporation to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify and hold harmless each (and advance expenses, provided the Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such Person is not entitled to indemnification) the present and former director directors and officer officers of the CompanyCompany and its Subsidiaries, determined as of the Effective Time or any fiduciaries under any Company Benefit Plan (the "each, an “Indemnified Parties"), Party”) against any and all costs or expenses (including reasonable attorneys' fees’ fees and expenses), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement or the transactions contemplated hereby or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Timetransactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time, to the fullest same extent permitted under applicable law such Indemnified Parties are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the Certificate of Incorporation and Bylaws of the Company and the agreements listed on Section 6.10(e) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties.
(b) Subject to the next sentence, the Surviving Corporation shall, and Parent shall, or shall cause the Surviving Corporation to, also advance fees at no expense to the beneficiaries, either (i) continue to maintain in effect for six (6) years from the Effective Time directors’ and expenses officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability insurance (the “Current Insurance”) with respect to matters existing or occurring at or prior to the Effective Time (including reasonable attorneys' feesthe 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 incurred 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 6.10(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, in the Surviving Corporation’s good faith determination, the greatest coverage available for a cost not exceeding such amount. Notwithstanding the first sentence of this Section 6.10(b), but subject to the second and third sentences of this Section 6.10(b), the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time.
(c) The certificate of incorporation and bylaws of the Surviving Corporation shall include provisions for indemnification, advancement of expenses and exculpation of the Indemnified Parties on the same basis as set forth in the Constituent Documents of the Company in effect on the date of this Agreement. Following the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the provisions in its certificate of incorporation and bylaws providing for indemnification, advancement of expenses and exculpation of Indemnified Parties, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law provided 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 person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)scope of the Indemnified Parties’ indemnification rights thereunder.
(d) Nothing in this Agreement is intended to, shall be construed to If Parent 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 Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its officersproperties and assets to any Person, directors then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or employees, it being understood and agreed clause (ii) of this sentence so that the indemnification provided for successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.7 is 6.10.
(e) From and after the Effective Time, Parent and the Surviving Corporation agree not prior to to, directly or in substitution for indirectly, amend, modify, limit or terminate the advancement of expenses, exculpation and indemnification provisions of the agreements listed on Section 6.10(e) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such claims provisions contained in the Surviving Corporation’s Constituent Documents.
(f) This Section 6.10 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and their heirs, legal representatives and assigns and shall be binding on all successors and assigns of Parent and the Surviving Corporation. Each Indemnified Party shall be a third-party beneficiary of this Section 6.10, and entitled to enforce the covenants contained in this Section 6.10. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.10 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 policiesindemnification, 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 6.10 shall be in addition to any rights such Indemnified Parties may have under the Constituent Documents of the Company, the Constituent Documents of any of the Company’s Subsidiaries or the Surviving Corporation or under any applicable Contracts, insurance policies or Laws.
Appears in 3 contracts
Samples: Merger Agreement (Tower Group, Inc.), Agreement and Plan of Merger (Tower Group, Inc.), Agreement and Plan of Merger (Specialty Underwriters Alliance, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify to, indemnify, defend and hold harmless each present and former director director, officer and officer employee of the CompanyCompany (including in their capacity as fiduciary under any LQ Equity Plan) (in each case, determined as of when acting in any such capacity) (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and collectively, the Effective Time (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities (collectively, "Costs") awards paid in settlement incurred in connection with any claim, action, suit, proceeding actual or investigation, whether civil, criminal, administrative or investigativethreatened Proceeding, arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and connection with matters existing or occurring at or prior to the Effective Time (including the fact that such Person is or was a director, officer or employee of the Company or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (the DGCL, and Parent shall, or shall cause the Surviving Corporation to, also shall advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 5.6, to the fullest same extent permitted as such Indemnified Parties are entitled to indemnification and advancement of expenses as of the date of this Agreement under applicable law provided the person certificate of incorporation or bylaws of the Company or the certificate of incorporation and bylaws, or equivalent organizational documents, of any Retained Subsidiary; provided, that the Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification pursuant to this Section 5.6; provided, further, that any determination required to be made with respect to whether an employee’s, officer’s or director’s conduct complies with the standards set forth under the DGCL, the certificate of incorporation and bylaws shall be made by independent counsel selected by the Surviving Corporation. In the event of any such Proceeding (x) neither Parent nor 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, and (y) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and Merger Sub shall cause the Surviving Corporation’s certificate of incorporation and bylaws to contain provisions no less favorable with respect to indemnification), advancement of expenses and exculpation from liabilities of the Indemnified Parties than are currently provided in the certificate of incorporation and bylaws and the indemnification agreements currently in place between the Company and any such Persons and set forth on Section 5.6(a) of the Company Disclosure Letter, which provisions will not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals until the sixth (6th) anniversary of the Effective Time, or, in the event that any Proceeding is pending or asserted or any claim made during such period, until the disposition of any such Proceeding or claim, unless such amendment, modification or repeal is required by applicable Laws, in which case Parent agrees, and will cause the Surviving Corporation, to make such changes to the certificate of incorporation and the bylaws as to have the least adverse effect on the rights of the individuals referenced in this Section 5.6.
(db) Nothing The Company shall (and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to) purchase and fully pay by the Effective Time, at no expense to the beneficiaries, tail policies to the current directors’ and officers’ liability insurance policies maintained at such time by the Company from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance, which tail policies (i) will be effective for a period from the Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time (including in connection with this Agreement, the Distribution Agreement or the transactions or actions contemplated hereby or thereby), and (ii) will contain coverage that is at least as protective to such directors and officers as the coverage provided by such existing policies. Parent will cause such policies to be maintained in full force and effect for their full term, and cause all obligations thereunder to be honored by the Surviving Corporation. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no expense to the beneficiaries, for a period of at least six (6) years from and after the Effective Time for the persons who are covered by the Company’s directors’ and officers’ liability insurance policy in place as of the date of this Agreement with terms, conditions, retentions and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase the best available directors’ and officers’ liability insurance policy for such six (6)-year period from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to the Company’s existing directors’ and officers’ liability insurance policies with terms, conditions, retentions and with levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement. Notwithstanding anything in the foregoing, in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) This Section 5.6 will survive the consummation of the Merger and is intended toto benefit, and will be enforceable by, any Indemnified Party and their respective successors, heirs and Representatives, shall be construed binding on all successors and assigns of Parent and the Surviving Corporation and shall not be amended in any matter that is adverse to or shall releaseany Indemnified Party (including their successors, waive or impair heirs and Representatives) without the consent of the Indemnified Party (including their successors, heirs and Representatives) affected thereby. The rights provided for in this Section 5.6 will not be deemed exclusive of any other rights to directors' which the Indemnified Party is entitled whether under the certificate of incorporation or bylaws of the Company or pursuant to Law, Contract or otherwise, and officers' insurance claims Parent shall, and shall cause the Surviving Corporation to, honor and perform under any policy that is or has been in existence with respect to all indemnification agreements entered into by the Company or any of its officersSubsidiaries. If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and will not be the continuing or surviving corporation or entity resulting from such consolidation or merger or (ii) transfers all or a majority of its properties and assets to any Person, directors or employeesthen, it being understood and agreed in each such case, proper provisions shall be made so that the indemnification provided for successors and assigns of Parent or the Surviving Corporation shall assume the applicable obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies5.6.
Appears in 3 contracts
Samples: Merger Agreement (Wyndham Hotels & Resorts, Inc.), Merger Agreement (La Quinta Holdings Inc.), Merger Agreement (Wyndham Worldwide Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder In the event of individuals who at the Effective Time were directorsany threatened or actual Legal Action, officers whether civil, criminal or employees administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company.
Company or any of its Subsidiaries (btogether, the “Indemnified Parties”) Parent shall cause is, or is threatened to be maintained be, made a party based in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the extent available; providedapproval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, and the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(ceach, an “Indemnifying Party”) For six years will, jointly and severally, from and after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify indemnify, defend and hold harmless each present harmless, as and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under or required by applicable law Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, also promptly advance fees and all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys' fees’ fees and disbursements) as are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the fullest extent permitted under required by the DGCL or other applicable law provided Law or the person to whom expenses are advanced provides a customary undertaking complying with applicable law Company Organizational Documents) that such Indemnified Party undertakes to repay such advances amount if it is ultimately determined that such person Indemnified Party is not entitled to indemnification)be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.
(db) Nothing For a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to effect the Company’s current directors' ’ and officers' ’ liability insurance claims under any policy that is and fiduciary liability insurance (the “D&O Insurance”) in respect of acts or omissions occurring at or prior to the Effective Time, covering each Person currently covered by the D&O Insurance (a complete and accurate copy of which has been in existence heretofore made available to Parent), on terms with respect to the coverage, deductible and amounts no less favorable in the aggregate than those of the D&O Insurance in effect on the date of this Agreement; provided, however, that (x) in satisfying its obligations under this Section 5.7(b) the Surviving Corporation shall not be obligated to pay annual premiums in excess of 200% of the amount currently paid by the Company or any (which premiums are set forth in Section 5.7(b) of its officers, directors or employeesthe Company Disclosure Letter), it being understood and agreed that the indemnification Surviving Corporation shall nevertheless be obligated to provide the maximum amount of such coverage as may be obtained for such annual 200% amount, and (y) in the event of the application of clause (x), any Indemnified Party, upon reasonable written notice thereof (which notice shall be provided no later than thirty (30) days prior to the Effective Time and shall set forth in reasonable detail for each Person to be covered the policy coverage, premiums, deductibles, limitations and other pertinent information), who desires to obtain additional coverage such that, when combined with the coverage obtained by the Surviving Corporation in accordance with clause (x), it provides insurance coverage equivalent to the D&O Insurance in effect on the date hereof, may so elect and, if available the Surviving Corporation shall acquire such additional coverage on behalf of such Person; provided, however, that in the event any Indemnified Party makes such an election, such Indemnified Party shall pay the portion of the premium of such D&O Insurance in excess of the amount which the Surviving Corporation is obligated to pay pursuant to this Section 5.7. At the Company’s option, the Company may purchase, prior to the Effective Time, a six (6)-year pre-paid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current D&O Insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. In addition, if the Company has not purchased any such policy, the Surviving Corporation may acquire a six (6)-year pre-paid tail policy for Persons currently covered by D&O Insurance that is consistent with the first sentence of this Section 5.7(b). In either case, any such policy, when fully paid for, shall be in lieu of satisfying the Surviving Corporation’s obligations pursuant to the first sentence of this Section 5.7(b). The obligation to maintain insurance provided in this Section 6.7 is 5.7(b) shall continue in full force and effect for a period of not prior less than six (6) years from and after the Effective Time; provided, however, that in the event any claim or claims are asserted or made within such six (6)-year period, the Surviving Corporation shall ensure that such insurance remains in full force and effect with respect to or in substitution for any such claims until final disposition thereof.
(c) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their respective certificates of incorporation or bylaws (or similar organizational documents) for a period of six (6) years after the Effective Time, provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, with respect to each such entity, no less advantageous to the Indemnified Parties than the corresponding provisions contained in such organizational documents as of the date of this Agreement.
(d) If the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation (or acquirer of such assets) shall assume all of the obligations of the Surviving Corporation set forth in this Section 5.7.
(e) The provisions of this Section 5.7 will survive the Closing and are intended to be for the benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and their rights under such policiesthis Section 5.7 are in addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or similar organizational documents of the Surviving Corporation or any of its Subsidiaries) or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Emageon Inc), Merger Agreement (Health Systems Solutions Inc), Merger Agreement (Health Systems Solutions Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will shall, or will shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its subsidiaries in their capacity as such and not as stockholders or optionholders of the Company or its subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its subsidiaries or (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (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 Law. In the event of any such claim, action, suit, proceeding or investigation, (and x) each Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten business days of receipt by Parent or the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Party of a reasonably detailed request therefor; provided the that any person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) neither Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (z) the Surviving Corporation shall cooperate in the defense of any such matter.
(db) Nothing in this Agreement is intended to, The certificate of incorporation and by-laws of the Surviving Corporation 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 contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of individuals who were directors and officers prior to the Effective Time than are presently set forth in the Company’s Certificate of Incorporation and By-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Effective Time, the Company shall endeavor to (and if it is unable to, Parent shall cause the Surviving Corporation to after the Effective Time) obtain and fully pay (up to a maximum cost of 300% of the current annual premium paid by the Company for its existing coverage in the aggregate) for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include coverage for the Company) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Effective Time. Parent shall, and shall cause the Surviving Corporation to, honor and perform under (i) all indemnification agreements entered into by the Company or any of its officerssubsidiaries and (ii) the obligations set forth on Section 6.7(c) of the Company Disclosure Schedule.
(d) Notwithstanding anything herein to the contrary, directors if any claim, action, suit, proceeding or employeesinvestigation (whether arising before, it being understood at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and agreed that shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in Section 6.6 and this Section 6.7 is 6.7. In addition, the Surviving Corporation shall not prior distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to or in substitution for any such claims render the Surviving Corporation unable to satisfy its obligations under such policiesthis Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (Neiman Marcus, Inc.), Merger Agreement (Neiman Marcus, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder The Company agrees that all rights to indemnification, advancement of individuals expenses and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time were directors, officers an officer or employees director (or manager) of the CompanyCompany and its Subsidiaries (each an “Indemnified Party”) as provided in the Organizational Documents of the Company and its Subsidiaries, in each case as in effect on the date of this Agreement, and pursuant to the indemnification agreements between the Company and each of its officers and directors listed in subsection (h) of Schedule 2.35 of the Disclosure Schedule (the “Director and Officer Indemnification Agreements”), each as in effect on the date hereof, shall continue in effect in accordance with their terms, without further action, and shall survive the transactions contemplated hereby after the Closing Date, and, if any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six (6) years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective TimeClosing Date, to the fullest extent permitted under applicable law Law, the applicable Organizational Documents in effect on the Closing Date and the Director and Officer Indemnification Agreements, the Company shall indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Closing Date (and Parent shallfor Xxxxxxx X. Xxxxxxx thereafter through the date on which he ceases to be an officer or director of the Company), including in connection with the transactions contemplated by this Agreement, and shall reimburse each Indemnified Party for any legal or shall cause other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred, subject to the Surviving Corporation to, also advance Company’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such person Indemnified Party is not entitled to indemnificationbe indemnified under applicable Law; provided, however, that the Company will not be liable for any settlement effected without the Company’s prior written consent (which consent shall not be unreasonably withheld or delayed).
(c) The Company shall (i) maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of directors’ and officers’ liability insurance maintained by the Company immediately prior to the Closing Date (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 in the aggregate 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 Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the directors and officers of the Company and its Subsidiaries, in each case with respect to claims arising out of or relating to events which occurred before or at the Closing Date (including in connection with the transactions contemplated by this Agreement). Notwithstanding the foregoing, if the coverage described in this Section 6.11(c) cannot be obtained, or can only be obtained by paying aggregate premiums in excess of 250% of the annual amount currently paid by the Company for such coverage, the Company shall only be required to provide as much coverage as can be obtained by paying aggregate premiums equal to 250% of the aggregate annual amount currently paid by the Company for such coverage.
(d) The obligations of the Company under this Section 6.11 shall survive the consummation of the transactions contemplated by this Agreement and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies shall, from and after the Closing, be third party beneficiaries of this Section 6.11, each of whom may enforce the provisions of this Section 6.11).
(e) If the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger (including but not limited to pursuant to Section 7.2 below) or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of the Company shall assume all of the obligations of the Company set forth in this Section 6.11. The 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 any of its officers, directors officers or employeesdirectors, it being understood and agreed that the indemnification provided for in this Section 6.7 6.11 is not prior to to, or in substitution for for, any such claims under any such policies.
(f) Notwithstanding anything in this Agreement to the contrary, the covenants and obligations set forth in this Section 6.11 are those of the Company, and neither the Purchaser nor any of its Affiliates (other than, after the Closing, the Company) shall have any liability to the Company, any Indemnified Party or any other Person arising out of or with respect to this Section 6.11.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Acre Realty Investors Inc), Stock Purchase Agreement (Roberts Realty Investors Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall cause the Surviving Corporation, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of individuals applicable Law adopted after the date of this Agreement that increase the extent to which indemnification may be provided), to indemnify, defend and hold harmless (and promptly advance expenses from time to time as incurred to the fullest extent permitted by Law, 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) each Person who is now, or has been at any time prior to the Effective Time or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries, any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) who is or has acted as such at the request of the Company (each an “Indemnified Party”) from and against any and all costs or expenses (including attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement or incurred in connection with any actual or threatened claim (including a claim of violation of applicable Law), action, audit, demand, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative or other proceeding at law or in equity or order or ruling, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time were directors, officers (including by reason of such Indemnified Party’s service as such a director or employees officer of the CompanyCompany or its Subsidiaries or as such a director, officer, trustee, fiduciary, employee or agent of another Person), including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time. Parent and the Surviving Corporation shall reasonably cooperate with any Indemnified Party in the defense of any matter covered by this Section 6.8.
(b) Subject to the following sentence, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, at no expense to be maintained the beneficiaries, either (i) continue to maintain in full force and effect for six years from the Effective Time Time, if available, the current policies of the directors' ’ and officers' ’ liability insurance maintained by and fiduciary liability insurance (the Company “Current Insurance”) with respect to matters existing or occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); provided that Parent the Surviving Corporation may substitute therefor for the Current Insurance policies of at least the same coverage containing terms and conditions which that are not materially less advantageous) favorable in the aggregate with respect to matters existing or events occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); or (ii) purchase a six 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 availablepurchased after the date of this Agreement 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; providedprovided 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 first sentence of this Section 6.8(b), howeverbut subject to the second sentence of this Section 6.8(b), that the Company will use reasonable best efforts to purchase a Reporting Tail Endorsement prior to the Effective Time upon terms and conditions reasonably acceptable to each of Parent and the Company. Notwithstanding the foregoing, in no event shall Parent or the Company Surviving Corporation be required to expend more than for such policies an annual premium amount per year equal to 200in excess of 300% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided that in the event of the Current Insurance, Parent or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(c) For six years after The certificate of incorporation and bylaws of the Surviving Corporation shall include provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties on the same basis as set forth in the Company Charter and the Company Bylaws in effect on the date of this Agreement. Following the Effective Time, the Surviving Corporation shall, and Parent agrees that it will or will shall cause the Surviving Corporation to indemnify to, maintain in effect the provisions in its certificate of incorporation and hold harmless each present bylaws providing for indemnification, advancement and former director reimbursement of expenses and officer exculpation of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted 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 claimed except to make changes permitted by applicable Law that would enlarge the scope of the Indemnified Parties’ indemnification and advancement 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 and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior toto 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 Surviving Corporation, at or as the case may be, shall assume all of the obligations set forth in this Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.8(e) of the Company Disclosure Letter between the Company or any Subsidiary and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation bylaws.
(f) This Section 6.8 is intended for the irrevocable benefit of, and to grant third-party rights to, the fullest extent permitted Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent and the Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement, then Parent or the Surviving Corporation shall pay such Indemnified Party’s costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Corporation. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or the bylaws of the Surviving Corporation or under any applicable law (Contracts, insurance policies or Laws and Parent shall, or and shall cause the Surviving Corporation to, also advance fees honor and expenses (including reasonable attorneys' fees) as incurred to perform under all indemnification agreements entered into by the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Company or any of its Subsidiaries.
(dg) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.8 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Parker Hannifin Corp), Merger Agreement (Clarcor Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee, officers officer or employees of director may have under any agreement or Benefit Plan or under the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters 's charter or events occurring prior to the Effective Time to the extent available; providedbylaws, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company or any of its Subsidiaries (the "Indemnified PartiesDirectors and Officers"), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to matters relating to their duties or actions taken by them in their capacity as officers and or directors and existing or occurring at or prior to the Effective TimeTime (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 the fullest extent permitted under applicable law (Law for a period of six years from the Effective Time. Each Indemnified Director and Parent shallOfficer shall be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or shall cause investigation from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided the person that any Person to whom expenses are advanced provides a customary an undertaking complying with applicable law 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.
(db) Nothing 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 officers than are presently set forth in the charter and bylaws of the Company and its Subsidiaries, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) On or prior to the date of this Agreement, the Company has received confirmation notices with respect to offers, on the terms and conditions set forth on Section 6.19(c) of 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 is intended toand 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 be construed provide for the Side A, B and C coverage for Indemnified Directors and Officers), on terms and conditions that have been made available to or shall releaseParent and Acquisition Corp., waive or impair any rights with a claims period of at least six years from the Offer Payment Date with respect to directors' and officers' insurance liability insurance, employee practices and fiduciary liability coverage, and with a claims under any policy that is or has been in existence 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) the date such Run-Off Policy is cancelled due to non-payment, the Company shall obtain 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 or any Company Subsidiary set forth in Section 6.19(c) of its officers, directors or employees, it being understood and agreed the Company Disclosure Schedule. In the event that the indemnification provided 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 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 Surviving Corporation to (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, plan purchaser protection, employee practices and fiduciary liability coverage in this Section 6.7 is not the aggregate (the "Maximum Amount")) for "tail" insurance policies (which shall provide for the Side A, B and C coverage for Indemnified Directors and Officers where the existing policies also include coverage for the Company) 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 in substitution procure such insurance coverage exceeds the Maximum Amount, the Company or the Surviving Corporation shall maintain or procure, for any such claims under such policiessix (6) year period or three (3) year period, as appropriate, the most advantageous policy of insurance for the Indemnified Directors and Officers obtainable for an annual premium equal to the Maximum Amount.
Appears in 2 contracts
Samples: Acquisition Agreement (GMM Capital LLC), Acquisition Agreement (GMM Capital LLC)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, the Surviving Entity shall provide exculpation, indemnification and advancement of individuals who expenses for each Indemnitee, which is at least as favorable in scope and amount to such Indemnitee as the exculpation, indemnification and advancement of expenses provided to such Indemnitee by the Company and the Company Subsidiaries immediately prior to the Effective Time were directors, officers in the Company Charter and the Company Bylaws or employees each of the CompanyCompany Subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents), as in effect on the date of this Agreement; provided that such exculpation, indemnification and advancement of expenses covers actions at or prior to the Effective Time, including all transactions contemplated by this Agreement.
(b) Without limiting the provisions of Section 6.10(a), during the period commencing as of the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, Parent and the Surviving Entity shall (and Parent shall cause the Surviving Entity to): (i) indemnify, defend and hold harmless each Indemnitee against and from any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Action, whether civil, criminal, administrative or investigative, to the extent such Action arises out of or pertains to (x) any action or omission or alleged action or omission in such Indemnitee’s capacity as a director, officer, partner, member, trustee, employee or agent of the Company or any of the Company Subsidiaries, or (y) this Agreement or any of the transactions contemplated hereby, including the Mergers; and (ii) pay in advance of the final disposition of any such Action the expenses (including attorneys’ fees and any expenses incurred by any Indemnitee in connection with enforcing any rights with respect to indemnification) of any Indemnitee upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be maintained indemnified. Notwithstanding anything to the contrary set forth in effect this Agreement, Parent or the Surviving Entity (i) shall not be liable for six years from any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) and (ii) shall not have any obligation hereunder to any Indemnitee to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable Law, in which case the Indemnitee shall promptly refund to Parent or the Surviving Entity the amount of all such expenses theretofore advanced pursuant hereto.
(c) Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Entity as of the Effective Time to, obtain and fully pay the current policies premium for the non-cancellable extension of the coverage afforded by the Company’s existing directors' ’ and officers' ’ liability insurance maintained by policies and the Company Company’s existing fiduciary liability insurance policies (provided that Parent may substitute therefor policies collectively, the “D&O Insurance”), in each case, for a claims reporting or discovery period of at least six (6) years from and after the same coverage containing terms and conditions which are not materially less advantageous) Effective Time with respect to matters any claim related to any period of time at or events occurring prior to the Effective Time from one or more insurance carriers with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions and retentions that are no less favorable in the aggregate than the coverage provided under the Company’s existing policies and with limits of liability that are no lower than the limits on the Company’s existing policies as long as the annual premium in the aggregate does not exceed in any one year three hundred percent (300%) of the annual aggregate premium(s) the Company’s paid for such purpose with respect to the extent availableperiod from March 31, 2011 to March 31, 2012 (which aggregate premiums with respect to the period from March 31, 2011 to March 31, 2012 are hereby represented and warranted by the Company to be $175,000). If the Company or the Surviving Entity for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Surviving Entity shall continue to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date hereof with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable in the aggregate than the coverage provided under the Company’s existing policies as of the date hereof, or (ii) Parent shall provide, or shall cause the Surviving Entity to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s D&O Insurance with comparable D&O Insurance that provides coverage for events occurring at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, that is no less favorable in the aggregate than the existing policy of the Company (which may be provided under Parent’s D&O Insurance policy) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that in no event Parent and the Surviving Entity shall Parent or the Company not be required to expend more than pay an amount per annual premium for the D&O Insurance in excess of (for any one year) three hundred percent (300%) of the annual aggregate premium(s) the Company’s paid for such purpose with respect to the calendar year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto2011; and, and provided, further further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation Entity shall be obligated to obtain a policy with the greatest coverage available available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(cd) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person The Indemnitees to whom expenses this Section 6.10 applies are advanced provides a customary undertaking complying with applicable law intended to repay such advances if it is ultimately determined be third-party beneficiaries of this Section 6.10. The provisions of this Section 6.10 are intended to be for the benefit of each Indemnitee and his or her successors, heirs, executors, trustees, fiduciaries, administrators or representatives. Parent shall pay all reasonable expenses, including attorneys’ fees, that such person is not entitled to indemnification)may be incurred by any Indemnitee in successfully enforcing the indemnity and other obligations provided in this Section 6.10.
(de) The rights of each Indemnitee under this Section 6.10 shall be in addition to any rights such Person or any employee of the Company or any Company Subsidiary may have under the Company Charter, the Company Bylaws or the certificate of incorporation or bylaws (or equivalent organizational or governing documents) of any of the Company Subsidiaries, or the Surviving Entity or any of its subsidiaries, or under any applicable Law or under any agreement of any Indemnitee. 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 officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.10 is not prior to to, or in substitution for for, any such claims under any such policies.
(f) Notwithstanding anything contained in Section 9.1 or Section 9.7 to the contrary, this Section 6.10 shall survive the consummation of the Mergers indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Entity and its subsidiaries, and shall be enforceable by the Indemnitees and their successors, heirs or representatives. In the event that Parent or the Surviving Entity or any of its successors or assigns 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 transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Entity, as applicable, shall succeed to the obligations set forth in this Section 6.10. The parties acknowledge and agree that Parent guarantees the payment and performance of the Surviving Entity’s obligations pursuant to this Section 6.10.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Trust III, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will shall, and shall cause the Company or will cause the Surviving Corporation (as the case may be) to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the TBCA adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify, defend and hold harmless each (and advance expenses from time to time as incurred to the fullest extent permitted by Law, provided the Person to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA and provides statements and reasonable documentation therefor) the present and former director directors and officer officers of the Company, determined any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) at the request of the Effective Time Company (the "each an “Indemnified Parties"), Party”) from and against any and all actual, documented costs or expenses (including reasonable attorneys' ’ fees, expenses and disbursements), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement and the Merger and the other Transactions or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers the Merger and directors and existing or occurring at or prior to the Effective Timeother Transactions, whether asserted or claimed prior to, at or after the Effective Time; provided that the Person to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any applicable standard of conduct required by the TBCA has been met. Any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law, the Company Charter, the Company Bylaws or a written Contract between an Indemnified Party and the Company or one of its Subsidiaries, as the case may be, shall be made by independent special legal counsel selected by the Board of Directors of the Surviving Corporation or a committee thereof in the manner prescribed by Section 00-00-000 of the TBCA, the fees of which counsel shall be paid by the Surviving Corporation.
(b) An Indemnified Party shall notify the Surviving Corporation in writing promptly upon learning of any claim, action, suit, proceeding, investigation or other matter in respect of which such indemnification may be sought. The Surviving Corporation shall have the right, but not the obligation, to assume and control the fullest extent defense of any act or omission covered under this Section 6.7 (each, a “Claim”) with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the applicable Indemnified Party; provided, however, that such Indemnified Party shall be permitted under applicable law (to participate in the defense of such Claim at his or her own expense; and provided, further, that if the Surviving Corporation assumes the defense then the Surviving Corporation shall use its reasonable best efforts to conduct a vigorous defense of such matter. Notwithstanding anything to the contrary in this Agreement, neither Parent nor the Surviving Corporation shall, and Parent shall cause the Surviving Corporation not to, settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.7 unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim, action, suit proceeding or investigation, and does not include an admission of fault or wrongdoing by any Indemnified Party, without the prior written consent of the Indemnified Party.
(c) Subject to the following sentence, the Company or the Surviving Corporation (or any successor), as the case may be, shall, and Parent shall cause the Company or the Surviving Corporation (or any successor), as the case may be, to purchase, at no expense to the beneficiaries, a six (6) year extended reporting period endorsement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability 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 of this Agreement 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 first sentence of this Section 6.7(c), but subject to the second and last sentence of this Section 6.7(b), the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding any of the foregoing, (i) in no event shall Parent or the Surviving Corporation be required to (or the Company be able to) expend for such policy an aggregate amount in excess of 300% of the annual premium currently payable by the Company, it being understood that if the premiums payable for such insurance coverage exceeds such amount, Parent and the Surviving Corporation shall be obligated to (or the Company may only) obtain a policy with the greatest coverage available for a cost equal to such amount.
(d) Following the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, also advance fees maintain in effect the provisions in the Company Charter and the Company Bylaws as of the date of this Agreement providing for indemnification, advancement and reimbursement of expenses (including reasonable attorneys' fees) and exculpation of Indemnified Parties, as incurred applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law provided Law, which provisions shall not be amended in a manner that would adversely affect the person to whom expenses are advanced provides a customary undertaking complying with rights thereunder of the Indemnified Parties, except as required by applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Law.
(de) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or (ii) of this sentence so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.7.
(f) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.7(f) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation charter or bylaws.
(g) This Section 6.7 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent under this Section 6.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless (i) such termination or modification is required by applicable Law or (ii) the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.7, and entitled to enforce the covenants contained in this Section 6.7. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.7 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 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 6.7 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or the charter or bylaws of the Surviving Corporation or under any applicable Contracts, insurance policies or Laws and Parent shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by the Company or any of its Subsidiaries.
(h) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Financial, Inc.), Agreement and Plan of Merger (O Charleys Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall, and shall cause the Surviving Company to, jointly and severally, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of individuals applicable Law adopted after the date of this Agreement that increase the extent to which indemnification may be provided), indemnify, defend and hold harmless (and promptly advance expenses from time to time as incurred to the fullest extent permitted by Law; 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) each Person who is now, or has been at any time prior to the Effective Time were directorsor who becomes prior to the Effective Time, officers a director or employees officer of the Company or any of its Subsidiaries and any Person acting as director, officer, trustee, fiduciary, employee or agent of another Person (including any Company Benefit Plan) who is or has acted as such at the request of the Company (each an “Indemnified Party”) from and against any and all costs or expenses (including reasonable attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement or incurred in connection with any actual or threatened claim (including a claim of violation of applicable Law), action, audit, demand, suit, other Proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative or other Proceeding at law or in equity or order or ruling, by reason of the fact that the Indemnified Party is or was a director or officer of the Company or its Subsidiaries or is or was a director, officer, trustee, fiduciary, employee or agent of another Person at the request of the Company, including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time. Parent and the Surviving Company shall cooperate with any Indemnified Party in the defense of any matter covered by this Section 6.8. Without limitation of the foregoing or any other provision of this Section 6.8, Parent and the Company agree that all rights to indemnification and exculpation from liability for acts or omissions occurring at or prior to the Effective Time and the rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party, whether provided in the certificate of incorporation or bylaws (or comparable organizational documents) of the Company or any of its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries, shall survive the Merger, be honored by the Surviving Company and its Subsidiaries and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(b) Subject to the following sentence, the Surviving Company shall, and Parent shall cause the Surviving Company to, at no expense to be maintained the beneficiaries, either (i) continue to maintain in full force and effect for six (6) years from the Effective Time Time, if available, the current policies of the directors' ’ and officers' ’ liability insurance maintained by and fiduciary liability insurance (the Company “Current Insurance”) with respect to matters existing or occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); provided that Parent the Surviving Company may substitute therefor for the Current Insurance policies of at least the same coverage containing terms and conditions which that are not materially less advantageous) favorable in the aggregate with respect to matters existing or events occurring at or prior to the Effective Time (including the Merger and the other 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 such Reporting Tail Endorsement in full force and effect for its full term. To the extent availablepurchased after the date of this Agreement 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; providedprovided 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 first sentence of this Section 6.8(b), howeverbut subject to the second sentence of this Section 6.8(b), that the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding the foregoing, in no event shall Parent or the Surviving Company be required to expend more than for such policies an annual premium amount per year equal to 200in excess of 300% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided that in the event of the Current Insurance, Parent or the Surviving Company shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(c) For six years after The New Articles of the Surviving Company shall include provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties that are, in substance, no less favorable to the Indemnified Parties than the provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties as set forth in the Company Memorandum and Articles of Association in effect on the date of this Agreement. Following the Effective Time, the Surviving Company shall, and Parent agrees that it will or will shall cause the Surviving Corporation to indemnify Company to, maintain in effect the provisions in its Memorandum and hold harmless each present Articles of Association providing for indemnification, advancement and former director reimbursement of expenses and officer exculpation of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted 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 claimed except to make changes permitted by applicable Law that would enlarge the scope of the Indemnified Parties’ indemnification and advancement rights thereunder.
(d) If Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior toto 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 Surviving Company, at or as the case may be, shall assume all of the obligations set forth in this Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Company shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.8(e) of the Company Disclosure Letter between the Company or any Subsidiary and any of the Indemnified Parties, or any such provisions contained in the Surviving Company bylaws.
(f) This Section 6.8 is intended for the irrevocable benefit of, and to grant third-party rights to, the fullest extent permitted Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Company. The obligations of Parent and the Surviving Company under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Company, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement, then Parent or the Surviving Company shall pay such Indemnified Party’s costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Company. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Memorandum and Articles of Association, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or under any applicable law (Contracts, insurance policies or Laws and Parent shall, or and shall cause the Surviving Corporation Company and each of its Subsidiaries to, also advance fees honor and expenses (including reasonable attorneys' fees) as incurred to perform under all indemnification agreements entered into by the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Company or any of its Subsidiaries.
(dg) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.8 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Yatra Online, Inc.), Merger Agreement (Ebix Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers Without limiting any additional rights that any director or employees of the Company.
(b) Parent shall cause to be maintained officer may have under any employment or indemnification agreement in effect for six years on the date hereof, from the Effective Time through the current policies sixth (6th) anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time occurs, Parent and the Surviving Corporation (the “Indemnitors”) shall: (i) indemnify and hold harmless each person who is at the date of this Agreement or during the period from the date of this Agreement through the Closing Date serving as a director or officer of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”) to the fullest extent available; authorized or permitted by applicable law, as now or hereafter in effect, in connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom, and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance (provided, however, that in no event shall Parent or the Company be person to whom expenses are advanced provides an undertaking to repay such advances to the extent required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7applicable law) to maintain each of the Indemnified Parties, to the fullest extent authorized or procure insurance coverage pursuant hereto; andpermitted by applicable law, providedas now or hereafter in effect, further that if any Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the annual premiums final disposition of such insurance coverage exceed Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such amountIndemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the Surviving Corporation requirement of any bond or other security. The indemnification and advancement obligations of the Indemnitors pursuant to this Section 7.12(a) shall be obligated extend to obtain a policy acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the greatest coverage available for approval of this Agreement and the consummation of the Transactions, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall continue as to a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will person who continues to be or will cause the Surviving Corporation who has ceased to indemnify and hold harmless each present and former be a director and or officer of the CompanyCompany or any of its Subsidiaries after the date of this Agreement and shall inure to the benefit of such person’s heirs, determined as executors and personal and legal Representatives. As used in this Section 7.12(a): (A) the term “Claim” means any threatened, asserted, pending or completed Action, whether instituted by any party hereto, any Governmental Entity or any other party, that any Indemnified Party in good faith believes might lead to the institution of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigationsuch Action, whether civil, criminal, administrative administrative, investigative or investigativeother, including any arbitration, mediation or other alternative dispute resolution mechanism, arising out of or pertaining to matters relating that relate to their duties such Indemnified Party in his or actions in their her capacity as officers and directors and existing a director or occurring officer of the Company or any of its Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after and (B) the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policies.term
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Engility Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee, officers officer or employees of director may have under any employment agreement or Company Plan or under the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies ’s or New Diamond’s certificate of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters incorporation or events occurring prior to the Effective Time to the extent available; providedby-laws, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each person who, as of the Effective Time, is a present and or former officer or director and officer of the Company, determined New Diamond or any Company Subsidiary or served as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) at any time maintained or contributed to by the Effective Time Company, New Diamond or any Company Subsidiaries (the "“Indemnified Parties"Directors and Officers”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesfines and reasonable fees, lossescosts and expenses, claimsincluding attorneys’ fees and disbursements, damages or liabilities (collectively, "Costs") incurred in connection with any claim, demand, action, suit, proceeding proceeding, inquiry or investigation, whether civil, criminal, administrative or investigative, arising out of actions taken (or pertaining failure to matters relating to their duties or actions take action) by any of them in their capacity capacities as officers and officers, directors and existing or occurring fiduciaries at or prior to the Effective TimeTime (including in connection with this Agreement or the transactions or actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Law. Parent shall, or and shall cause the Surviving Corporation to, also advance fees the cost of any expenses incurred by each Indemnified Director and expenses (including reasonable attorneys' fees) Officer in the defense of any claim, demand, action, suit, proceeding, inquiry or investigation arising out of such Indemnified Director or Officer’s service as incurred to a director, officer or fiduciary within three Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided the person only that any Person to whom expenses are to be advanced provides a customary undertaking complying with applicable law an undertaking, if and only to the extent required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification in a final, nonappealable determination by a Governmental Authority of competent jurisdiction. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any actual or threatened claim, demand, action, suit, proceeding, inquiry or investigation in respect of which indemnification has been or could be sought by such Indemnified Director or Officer hereunder unless such settlement, compromise or judgment includes an unconditional release of such Indemnified Director or Officer from all liability arising out of such claim, demand, action, suit, proceeding, inquiry or investigation or such Indemnified Director or Officer otherwise consents thereto.
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall continue to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of the Indemnified Directors and Officers and former or present directors and officers than are presently set forth in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals. The resolutions adopted by the Company Board of Directors on October 7, 2005 relating to the indemnification of certain benefit plan fiduciaries, which resolutions are set forth in Section 6.8(b) of the Company Disclosure Letter, shall continue in effect and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any Fiduciary (as such term is defined therein) and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and pay any and all expenses incurred by each Fiduciary in accordance with the term of such resolutions and otherwise honor and comply with the provisions of such resolutions.
(c) Prior to the Effective Time, the Company and/or New Diamond shall (and if it is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to) obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Directors and Officers where the existing policies also include Side B coverage for the Company) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance with benefits and levels of coverage at least as favorable as the Company’s existing policies as of the date hereof with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby), provided, however, that in no event shall the Company expend for such policies an amount in excess of the amounts set forth in Section 6.8(c) of the Company Disclosure Letter; and, provided further that if the premiums of such insurance coverage exceeds such amount, the Company shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from the Effective Time the directors’ and officers’ liability insurance and fiduciary liability insurance in place as of the date hereof covering the Indemnified Directors and Officers with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable directors’ and officers’ liability insurance and fiduciary liability insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date hereof covering the Indemnified Directors and Officers; provided, however, that in no event shall the Parent or Surviving Corporation be required to expend for such policies an annual premium amount in excess of the amounts set forth in Section 6.8(c) of the Company Disclosure Letter; and, 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 such amount. Parent shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by the Company or any Company Subsidiary set forth in Section 6.8(c) of the Company Disclosure Letter.
(d) Nothing in this Agreement This covenant is intended toto be for the benefit of, and shall be construed to or enforceable by, each of the Indemnified Directors and Officers and their respective heirs and legal representatives. The indemnification provided for herein shall release, waive or impair not be deemed exclusive of any other rights to directors' and officers' insurance claims under any policy which an Indemnified Director or Officer is entitled, whether pursuant to Law, contract or otherwise.
(e) In the event that is Parent or has been in existence with respect to the Company Surviving Corporation or any of its officerssuccessors 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 as an entirety in one or a series of related transactions to any Person(s), directors then, and in each such case, proper provision shall be made so that such continuing or employeessurviving corporation or entity or such Persons(s), it being understood and agreed that as the indemnification provided for case may be, shall assume the obligations set forth in this Section 6.7 is not prior 6.8; provided that neither Parent nor the Surviving Corporation shall be relieved from such obligation. In addition, neither Parent nor the Surviving Corporation shall distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Parent or in substitution for any such claims Surviving Corporation unable to satisfy its obligations under such policiesthis Section 6.8.
Appears in 2 contracts
Samples: Merger Agreement (Albertsons Inc /De/), Merger Agreement (Supervalu Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective TimeAcceptance Date, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present and former person who is now or was prior to the Effective Date an officer or director and officer of the Company, determined as Company or the Company Subsidiaries and each person who is now or was prior to the Effective Date an officer or director of the Effective Time Company or the Company Subsidiaries who served as a fiduciary under or with respect to any employee benefit plan of the Company or the Company Subsidiaries (within the "meaning of Section 3(3) of ERISA) (each, an “Indemnified Parties"), Person”) against any costs or expenses (including reasonable advancing attorneys' fees’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Person to the fullest extent permitted by applicable Law; provided, that such advance shall be conditioned upon the Surviving Company’s receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be ultimately determined by final judgment of a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified pursuant to this Section 7.7(a)), judgments, fines, losses, claims, damages or damages, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation, whether civil, criminal, administrative investigation in respect of or investigative, arising out of acts or pertaining omissions occurring or alleged to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring have occurred at or prior to the Effective Time, whether asserted based in whole or claimed prior toin part on or arising in whole or in part out of the fact that such person is or was an officer or director of the Company and the Company Subsidiaries or a fiduciary under or with respect to any employee benefit plan of the Company or the Company Subsidiaries. In the event of any such action, at or Parent and the Surviving Corporation shall cooperate with the Indemnified Person in the defense of any such action.
(b) From and after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation toto fulfill and honor in all respects the obligations of the Company pursuant to any indemnification agreements of the Company or the Company Subsidiaries set forth in Section 7.7(b) of the Disclosure Schedule (the “Indemnification Agreements”) (and all other indemnification agreements of the Company that are on terms substantially similar to the Indemnification Agreements) and any indemnification, also advance fees and exculpation or advancement of expenses provisions under the certificates of incorporations or bylaws (including reasonable attorneys' feesor comparable organizational documents) as incurred in effect immediately prior to the fullest extent permitted Effective Time; provided, that such obligations shall be subject to any limitation imposed from time to time under applicable law provided Law.
(c) For six (6) years after the person Effective Time, Parent shall cause the Surviving Corporation to whom expenses are advanced provides provide officers’ and directors’ liability, fiduciary liability and similar insurance (collectively, “D&O Insurance”) in respect of acts or omissions occurring prior to the Effective Time covering each Indemnified Person covered as of the date of this Agreement by the Company’s D&O Insurance policies on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date of this Agreement as well as covering claims brought against each Indemnified Person under ERISA; provided, that, in satisfying its obligation under this Section 7.7(c), the Surviving Corporation shall not be obligated to pay annual premiums in the aggregate in excess of 200% of the amount 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 Parent or the Surviving Corporation may, and prior to the Acceptance Date, the Company may, with the prior written consent of Parent (which shall not be unreasonably withheld, delayed or conditioned), purchase a customary undertaking complying “tail” directors’ and officers’ liability insurance policy, covering the same persons and providing the same terms with applicable law respect to repay coverage and amount as aforesaid, and that by its terms shall provide coverage until the sixth annual anniversary of the Effective Time, and upon the purchase of such advances if it insurance Parent’s and the Surviving Corporation’s obligations pursuant to the first sentence of this Section 7.7(c) shall be deemed satisfied for so long as such insurance is ultimately determined that such person is not entitled to indemnification)in full force and effect.
(d) Nothing in The rights of each Indemnified Person under this Agreement is Section 7.7 shall survive consummation of the Merger and are intended toto benefit, and shall be construed to or shall releaseenforceable by, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to each Indemnified Person.
(e) If Parent, the Company Surviving Corporation or any of its officerssuccessors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or the surviving corporation or entity of such consolidation or merger, directors or employees(ii) transfers or conveys all or substantially all of its properties and assets to any Person, it being understood then, and agreed in each such case, to the extent necessary, proper provision shall be made so that the indemnification provided for successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies7.7.
Appears in 2 contracts
Samples: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain the same provisions with respect to indemnification, advancement and director 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 individuals persons who at any time prior to the Effective Time were directorsentitled to indemnification, officers advancement or employees exculpation under the Certificate of Incorporation or Bylaws of the CompanyCompany 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.
(b) After the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable Law and as required by any indemnification agreements of the Company (as each is in effect on the date hereof), indemnify and hold harmless, each present and former director or officer of the Company and 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 (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 herein shall make Parent, Merger Sub, the Company or the Surviving Corporation an insurer, a co-insurer or an excess insurer in respect of any insurance policies that may provide coverage for any of the foregoing, nor shall this Section 6.06 relieve the obligations of any insurer in respect thereto. Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) Parent and the Surviving Corporation shall advance or pay the reasonable fees and expenses of counsel selected by any Indemnified Party, which counsel shall be reasonably satisfactory to Parent and the Surviving Corporation, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and (ii) Parent and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed).
(c) For a period of six years after the Effective Time, Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' ’ and officers' ’ liability insurance policies maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters claims arising from facts or events occurring that occurred prior to the Effective Time (including with respect to the extent availabletransactions contemplated by this Agreement); provided, however, that in no event shall Parent or the Company be required to expend pursuant to this Section 6.06(c) more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, provided further that if the annual premiums existing directors’ and officers’ liability insurance policy expires, is terminated or cancelled during such six-year period, Parent shall cause to be obtained as much directors’ and officers’ liability insurance as can be obtained for the remainder of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available period for a cost premium not exceeding such amount.
in excess (con an annualized basis) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of 200% of the Company, determined as of current annual premium paid by the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay Company for such advances if it is ultimately determined that such person is not entitled to indemnification)insurance.
(d) Nothing in this Agreement This Section 6.06 is intended toto be for the benefit of, and shall be construed to or enforceable by, the Indemnified Parties and their heirs and personal representatives and shall release, waive or impair any rights to directors' be binding on the Surviving Corporation and officers' insurance claims under any policy that is or has been in existence with respect to its successors and assigns. In the event the Company 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 in such consolidation or merger or (ii) transfers all or substantially all of its officersproperties and assets to any person, directors or employeesthen, it being understood and agreed in each case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, honor the indemnification provided for obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.06.
Appears in 2 contracts
Samples: Merger Agreement (Ariba Inc), Merger Agreement (Ariba Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any Company Employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its subsidiaries or (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (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 law. In the event of any such claim, action, suit, proceeding or investigation, (x) each Indemnified Party will 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 Party 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 DGCL, to repay such advances if it is ultimately adjudicated that such person is not entitled to indemnification, (y) neither Parent nor Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation. Parent and the Surviving Corporation shall be entitled to elect to control the defense of any such action or proceeding, and counsel selected by the Indemnified Party shall, to the extent consistent with their professional responsibilities, cooperate with Parent and counsel designated by Parent; provided, however, that if there is a conflict between Parent and/or the Surviving Corporation, on the one hand, and the Indemnified Party, on the other hand, in respect of such action or proceeding, Parent shall not be entitled to elect to control the defense of such action or proceeding (it being understood that, in such case, the Indemnified Party shall not be entitled to into any settlement with respect to the such action or proceeding without the prior written consent of the Parent).
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company’s Certificate of Incorporation and By-Laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses either (including reasonable attorneys' feesi) as incurred cause to be obtained at the Effective Time “tail” insurance policies, at no expense to the fullest extent permitted under applicable law provided beneficiaries, with a claims period of six years from the person to whom expenses are advanced provides a customary undertaking complying Effective Time, from an insurance carrier with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to the same or shall release, waive or impair any rights to directors' and officers' better credit rating as the Company’s current insurance claims under any policy that is or has been in existence carrier with respect to directors’ and officers’ liability insurance in an amount and scope and on terms at least as favorable to the Indemnified Parties as the Company’s current policies with respect to matters existing or occurring at or prior to the Effective Time or (ii) maintain at no expense to the beneficiaries, in effect for six years from the Effective Time the current policies of the directors’ and officers’ liability insurance maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof than those of such policy in effect on the date of the Agreement) with respect to matters existing or occurring at or prior to the Effective Time; provided, that, in satisfying its obligation under this Section 6.6(c), Parent, or the Surviving Corporation, as applicable, shall not be obligated to pay aggregate premiums in excess of 300% of the amount per annum the Company paid in its last full fiscal year, which amount is set forth in Section 6.6(c) of the Company Disclosure Schedule. Parent shall cause the Surviving Corporation to honor and perform under all indemnification agreements entered into by the Company or any of its officerssubsidiaries.
(d) Notwithstanding anything herein to the contrary, directors if any claim, action, suit, proceeding or employeesinvestigation (whether arising before, it being understood at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.6 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and agreed that shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in Section 6.5 and this Section 6.7 is 6.6. In addition, the Surviving Corporation shall not prior distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to render the Surviving Corporation unable to satisfy its obligations under this Section 6.6 unless the successor or in substitution for any assign assumes such claims under such policiesobligations.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (V F Corp), Merger Agreement (Timberland Co)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From the Merger Effective Time were directors, officers or employees through the sixth (6th) anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from date on which the Merger Effective Time the current policies occurs, each of the directors' Parent and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms shall, jointly and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; providedseverally, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Merger Effective Time, a director and or officer of the Company, determined as of Parent or the Effective Time Company (the "“D&O Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, fines, lossesand reasonable fees, claimscosts, damages or liabilities and expenses, including attorneys’ fees and disbursements (collectively, "“Costs") ”), incurred in connection with any claim, action, suit, proceeding proceeding, or investigation, whether civil, criminal, administrative administrative, or investigative, arising out of or pertaining to matters relating to their duties the fact that the D&O Indemnified Party is or actions in their capacity as officers and directors and existing was a director or occurring at officer of the Parent or prior to the Effective TimeCompany, whether asserted or claimed prior to, at or after the Merger Effective Time, to the fullest extent permitted under applicable law (the DGCL and Parent shallNRS for directors or officers of Delaware corporations. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding, or shall cause investigation from each of the Surviving Corporation toParent and the Company, also advance fees jointly and expenses (including reasonable attorneys' fees) as incurred to severally, upon receipt by the fullest extent permitted under applicable law provided Parent or the Company from the D&O Indemnified Party of a request therefor; provided, that any person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, as applicable, to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(b) The Organizational Documents of each of the Parent and the Company shall contain provisions no less favorable with respect to indemnification, advancement of expenses, and exculpation of present and former directors and officers of each of the Parent and the Company than are presently set forth in the certificate of incorporation and bylaws (or equivalent organizational document in accordance with Applicable Law) of the Parent and the Company, as applicable, which provisions shall not be amended, modified, or repealed for a period of six (6) years’ time from the Merger Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Merger Effective Time, were officers or directors of the Parent or the Company.
(c) Prior to the Merger Effective Time, the Parent shall purchase a “tail” insurance policy with an effective date as of the Closing Date, which shall remain effective for six (6) years following the Closing Date, at least the same coverage and amounts and containing the same terms and conditions that are not less favorable to the D&O Indemnified Parties of the Parent (provided that (i) the Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous and (ii) the Company shall cooperate with the Parent in connection with obtaining such substitute policies, including by providing information reasonably requested by the Parent in connection therewith) with respect to claims arising from or related to facts or events which occurred at or before the Merger Effective Time; provided, however, that Parent shall not be obligated to purchase such a “tail” policy if the cost would exceed 300% of the annual premiums paid as of the date of this Agreement by the Company for such insurance or make annual premium payments for such insurance to the extent such premiums exceed that amount. If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of 300% of the annual premiums paid as of the date of this Agreement by the Company for such insurance, the Parent shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to 300% of the annual premiums paid as of the date of this Agreement by the Company for such insurance.
(d) Nothing The Parent and the Company, as co-obligors with joint and several liability, shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by the persons referred to in this Agreement is Section 6.7 in connection with their enforcement of their rights provided in this Section 6.7.
(e) The provisions of this Section 6.7 are intended toto be in addition to the rights otherwise available to the D&O Indemnified Parties by law, charter, statute, bylaw, or agreement. The obligations of the Parent and the Company under this Section 6.7 shall survive the consummation of the transaction and shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party to whom this Section 6.7 applies without the consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this Section 6.7 applies, as well as their heirs and representatives, shall be construed to third party beneficiaries of this Section 6.7, each of whom may enforce the provisions of this Section 6.7).
(f) In the event the Parent 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 their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its officersproperties and assets to any Person, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors and assigns of the Parent or the Company, as the case may be, shall succeed to the obligations set forth in this Section 6.7 is not prior 6.7. The Parent shall cause the Parent and the Company to or in substitution for any such claims perform all of the obligations of the parties under such policiesthis Section 6.7.
Appears in 2 contracts
Samples: Merger Agreement (Agrify Corp), Merger Agreement (Nature's Miracle Holding Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder To the fullest extent permitted by applicable Law, from and after the Effective Time, the Surviving Entity shall provide exculpation, indemnification and advancement of individuals who expenses for each Indemnitee, which is at least as favorable in scope and amount to such Indemnitee as the exculpation, indemnification and advancement of expenses provided to such Indemnitee by the Company and the Company Subsidiaries immediately prior to the Effective Time were directors, officers in the Company Charter and the Company Bylaws or employees each of the CompanyCompany Subsidiaries’ respective articles or certificates of incorporation or bylaws (or comparable organizational or governing documents), as in effect on the date of this Agreement; provided that such exculpation, indemnification and advancement of expenses covers actions or omissions at or prior to the Effective Time, including all transactions contemplated by this Agreement.
(b) Without limiting the provisions of Section 7.9(a), during the period commencing as of the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, Parent and the Surviving Entity shall (and Parent shall cause the Surviving Entity to): (i) indemnify, defend and hold harmless each Indemnitee against and from any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Action, whether civil, criminal, administrative or investigative, to the extent such Action arises out of or pertains to (x) any action or omission or alleged action or omission in such Indemnitee’s capacity as a director, officer, partner, member, trustee, employee or agent of the Company or any of the Company Subsidiaries, or (y) this Agreement or any of the transactions contemplated hereby, including the Offer and the Merger; and (ii) pay in advance of the final disposition of any such Action the expenses (including attorneys’ fees and any expenses incurred by any Indemnitee in connection with enforcing any rights with respect to indemnification) of any Indemnitee, without the requirement of any bond or other security, upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be maintained indemnified. Notwithstanding anything to the contrary set forth in effect this Agreement, Parent or the Surviving Entity (i) shall not be liable for six years from any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) and (ii) shall not have any obligation hereunder to any Indemnitee to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable Law, in which case the Indemnitee shall promptly refund to Parent or the Surviving Entity the amount of all such expenses theretofore advanced pursuant hereto.
(c) Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Entity as of the Effective Time to, obtain and fully pay the current policies premium for the non-cancellable extension of the coverage afforded by the Company’s existing directors' ’ and officers' ’ liability insurance maintained by policies and the Company Company’s existing fiduciary liability insurance policies (provided that Parent may substitute therefor policies collectively, the “D&O Insurance”), in each case, for a claims reporting or discovery period of at least six (6) years from and after the same coverage containing terms and conditions which are not materially less advantageous) Effective Time with respect to matters any claim related to any period or events occurring time at or prior to the Effective Time from one or more insurance carriers with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions and retentions that are no less favorable in the aggregate than the coverage provided under the Company’s existing policies and with limits of liability that are no lower than the limits on the Company’s existing policies as long as the annual premium in the aggregate does not exceed 250% of the annual aggregate premium(s) under the Company’s existing policies. If the Company or the Surviving Entity for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Surviving Entity shall continue to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date hereof with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable in the aggregate than the coverage provided under the Company’s existing policies as of the date hereof, or (ii) Parent shall provide, or shall cause the Surviving Entity to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s D&O Insurance with comparable D&O Insurance that provides coverage for events occurring at or prior to the extent availableEffective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier, that is no less favorable in the aggregate than the existing policy of the Company (which may be provided under Parent’s D&O Insurance policy) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that in no event Parent and the Surviving Entity shall Parent or the Company not be required to expend more than pay an amount per year equal to 200annual premium for the D&O Insurance in excess of 250% of current the annual premiums premium currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, and provided, further further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation Entity shall be obligated to obtain a policy with the greatest coverage available available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(cd) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person The Indemnitees to whom expenses this Section 7.9 applies are advanced provides a customary undertaking complying with applicable law intended to repay such advances if it is ultimately determined be third-party beneficiaries of this Section 7.9. The provisions of this Section 7.9 are intended to be for the benefit of each Indemnitee and his or her successors, heirs, executors, trustees, fiduciaries, administrators or representatives. Parent shall pay all reasonable expenses, including attorneys’ fees, that such person is not entitled to indemnification)may be incurred by any Indemnitee in successfully enforcing the indemnity and other obligations provided in this Section 7.9.
(de) The rights of each Indemnitee under this Section 7.9 shall be in addition to any rights such Person or any employee of the Company or any Company Subsidiary may have under the Company Charter, the Company Bylaws or the certificate of incorporation or bylaws (or equivalent organizational or governing documents) of any of the Company Subsidiaries, or the Surviving Entity or any of its subsidiaries, or under any applicable Law or under any agreement of any Indemnitee or any employee with the Company or any of the Company Subsidiaries listed in Section 5.12 the Company Disclosure Letter. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 7.9 is not prior to to, or in substitution for for, any such claims under any such policies.
(f) Notwithstanding anything contained in Section 10.1 or Section 10.7 to the contrary, this Section 7.9 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Entity and its subsidiaries, and shall be enforceable by the Indemnitees and their successors, heirs or representatives. In the event that Parent or the Surviving Entity or any of its successors or assigns 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 transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Entity, as applicable, shall succeed to the obligations set forth in this Section 7.9. The parties acknowledge and agree that Parent guarantees the payment and performance of the Surviving Entity’s obligations pursuant to this Section 7.9.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for For six years from and after the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountTime, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, when acting or having acted in such capacity), determined as of the Effective Time (the "“Indemnified Parties"”), against any costs or and expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, "“Costs"”) incurred in connection with any claim, action, suit, proceeding arbitration, proceeding, investigation, mediation, consent decree, audit or investigationinquiry, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted that the Company would have been required under applicable law Law, the Certificate of Incorporation, the Bylaws, the certificate of incorporation and bylaws (or equivalent governing documents) of any of the Company’s subsidiaries, and any indemnification agreements with any directors and officers of the Company or any of its subsidiaries in effect on the date of this Agreement (the “Existing Indemnification Rights”) to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, shall also advance fees and expenses (including reasonable and documented attorneys' fees’ fees to the fullest extent that the Company would have been required to advance expenses under the Existing Indemnification Rights) as incurred to the fullest extent permitted under applicable law provided Law; provided, that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification). 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 shall have the right to control the defense thereof after the Effective Time and the Indemnified Parties shall cooperate with Parent and the Surviving Corporation in such defense; provided that the Surviving Corporation shall pay all reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly as statements therefor are received to the fullest extent that the Company would have been required to pay such fees and expenses under the Existing Indemnification Rights; (ii) Parent and the Surviving Corporation shall cooperate in the defense of any such matter if the Parent or Surviving Corporation elects not to assume the defense thereof; (iii) neither Parent nor the Surviving Corporation shall be liable for any settlement effected without their prior written consent and (iv) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any pending or threatened Proceeding 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 Proceeding or such Indemnified Party otherwise consents. In the event the Surviving Corporation or any of its successors or assigns consolidates or amalgamates or merges into with any other Person and shall not be the continuing or surviving company or entity of such consolidation, amalgamation or merger, then proper provision shall be made so that the successors and assigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 6.10.
(db) Nothing in Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Agreement is intended toSection 6.10, upon learning of any such Proceeding, shall be construed reasonably promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or shall releasethe Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying Party.
(c) From and after the Effective Time, waive or impair any rights to directors' the provisions in the Surviving Corporation’s Charter and officers' insurance claims under any policy that is or has been in existence bylaws with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Certificate of Incorporation and Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors and officers of the Company or any of its subsidiaries, except to the extent required by applicable Law.
(d) Prior to the Effective Time, the Company shall be permitted and, if the Company fails to do so, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies for a claims period of at least six (6) years from and after the Effective Time, directors that shall be from an insurance carrier with the same or employeesbetter credit rating as the Company’s insurance carrier as of the date hereof with respect to directors’ and officers’ liability insurance (collectively, it being understood “D&O Insurance”) with benefits and agreed levels of coverage (including terms relating thereto) that are at least as favorable as the Company’s existing policies with respect to matters existing or occurring prior to the Effective Time (including in connection with this Agreement, the Merger or the transactions contemplated thereby); provided, however, that in no event shall the Company expend, or shall Parent or the Surviving Corporation be required to expend, for such policies an aggregate premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance (which current annual premium amount is set forth in Section 6.10(d) of the Company Disclosure Schedule). If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date of this Agreement with benefits and levels of coverage (including terms relating thereto) that are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium 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, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(e) The provisions of this Section 6.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs, successors and representatives.
(f) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the Certificate of Incorporation, Bylaws, the certificate of incorporation or bylaws (or equivalent governing documents) of any subsidiaries of the Company or the Surviving Corporation or any of its subsidiaries, or under any Law or indemnification agreement to which any Indemnified Party is a party in effect as of the date of this Agreement.
(g) With respect to any indemnification obligations of the Surviving Corporation pursuant to this Section 6.10, Parent hereby acknowledges and agrees that the Surviving Corporation shall be the indemnitor of first resort with respect to all indemnification provided for in obligations of the Surviving Corporation pursuant to this Section 6.7 is not prior 6.10 (i.e., its obligations to an applicable Indemnified Party are primary and any obligation of any other person to advance expenses or in substitution to provide indemnification and/or insurance for any the same expenses or losses incurred by such claims under such policiesIndemnified Parties are secondary).
Appears in 2 contracts
Samples: Merger Agreement (Advanced Disposal Services, Inc.), Merger Agreement (Waste Management Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directorsDate, officers BidCo shall cause the Company to assume all obligations of the Company and its subsidiaries in respect of exculpation, indemnification and advancement of expenses for each individual who on the Effective Date is, or employees at any time prior to the Effective Date was, a director or officer of the Company.
, or, while a director or officer of the Company, is or was a director or officer of its subsidiaries (b) Parent shall cause each, an “Indemnified Party”), for acts or omissions occurring on or prior to be maintained the Effective Date as provided in the Certificate of Incorporation and Articles of Association as in effect for on the date of this Agreement. For a period of six (6) years from the Effective Time Date, the current policies Company shall maintain, and BidCo shall cause the Company to maintain, provisions of the directors' Certificate of Incorporation and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies Articles of at least the same coverage containing terms and conditions which are not materially less advantageous) Association with respect to matters or events occurring 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 Certificate of Incorporation and Articles of Association as in effect on the date of this Agreement, and shall not prior to the Effective Time to expiration of such period amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the extent availablerights thereunder of any Indemnified Party; provided, however, that all rights to indemnification in no event shall Parent respect of any actual or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, arising out a “Proceeding”) made within such six (6)-year period shall continue until the disposition or resolution of or pertaining to matters relating to their duties or actions such Proceeding in their capacity as officers accordance with the Company’s Certificate of Incorporation and directors and existing or occurring at or prior Articles of Association. Anything to the Effective Timecontrary in this Section 6.11 notwithstanding, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person any Person to whom an advancement of expenses are advanced provides is provided in connection with a customary Proceeding shall be required to provide, as a condition to such advancement, an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Indemnified Party is not entitled to indemnificationindemnification in connection with such Proceeding. In the event of any such Proceeding (x) neither BidCo nor Company 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 in writing to such settlement, compromise or consent and (y) the Company shall 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 6.11, (i) the Company or BidCo shall have the right, but not the obligation, to control the defense thereof after the Effective Date, (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Company shall elect to control the defense of any such Proceeding, (iii) the Company shall advance all reasonable fees and expenses of any counsel retained by an Indemnified Party promptly after statements therefor are received, whether or not the Company 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).
(db) Nothing in this Agreement is intended toAny Indemnified Party wishing to claim indemnification or an advancement of expenses under Section 6.11, upon learning of any such Proceeding, shall be construed promptly notify the Company thereof, but the failure to so notify shall not relieve the Company of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the Company.
(c) BidCo shall maintain, or shall releasecause the Company to maintain, waive or impair any rights at no expense to the beneficiaries, in effect for a period of six (6) years from the Effective Date the current policies of the directors' ’ and officers' ’ liability insurance claims under any policy that is or has been and fiduciary liability insurance maintained by the Company as disclosed in existence Section 6.11 of the Company Disclosure Letter with respect to matters existing or occurring on or prior to the Effective Date; provided, however, that after the Effective Date, BidCo shall not be required to pay in the aggregate for such coverage more than 300% 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, but in such case shall purchase as much coverage as reasonably practicable for such amount. At BidCo’s option, BidCo may direct the Company to purchase a six (6)-year prepaid “tail policy” to incept on the Effective Date at a cost no greater than the aggregate amount that the Company would be permitted to spend during the six (6)-year period provided for in this Section 6.11(c) on terms and conditions providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Date, including the transactions contemplated hereby. In the event BidCo elects to purchase such a “tail policy” in accordance with this Section 6.11(c) prior to the Effective Date, the Company shall (and BidCo shall cause the Company to) maintain such “tail policy” in full force and effect. BidCo agrees to cause the Company to honor and perform all indemnification agreements entered into by the Company or any of its officerssubsidiaries with any Indemnified Party on the terms and conditions set forth therein and solely to the extent disclosed in Section 6.11 of the Company Disclosure Letter.
(d) If BidCo or the Company or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or Company or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, directors corporation or employeesother entity, it being understood then, and agreed in each such case, proper provisions shall be made so that the indemnification provided for successors and assigns of BidCo or the Company shall assume all of the obligations set forth in this Section 6.7 is not prior 6.11.
(e) The provisions of this Section 6.11 shall survive the Acquisition and, following the Effective Date, are intended to or in substitution be for any such claims under such policiesthe benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and Representatives.
Appears in 2 contracts
Samples: Acquisition Agreement (NCR Corp), Acquisition Agreement (Cardtronics PLC)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Acquirer agrees that all rights to indemnification, advancement of individuals expenses and exculpation by the Target now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Target and its Subsidiaries (each an “Indemnified Party”) as provided in the Target Charter Documents, in each case as in effect on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 5.09, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time were directorsand shall survive the Merger and shall remain in full force and effect in accordance with their terms, officers and, in the event that any proceeding is pending or employees asserted or any claim made during such period, until the final disposition of the Companysuch proceeding or claim.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six (6) years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (Law, Acquirer and Parent shall, or shall cause the Surviving Corporation to(the “Indemnifying Parties”) shall indemnify, also advance defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred, subject to the Surviving Corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such person Indemnified Party is not entitled to indemnificationbe indemnified under applicable Law; 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 (i) maintain in effect for a period of six (6) years after the Effective Time, if available, the current policies of directors’ and officers’ liability insurance maintained by the Target 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 Target and its Subsidiaries when compared to the insurance maintained by the Target as of the date hereof), or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Target and its Subsidiaries, in each case with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event will the Surviving Corporation be required to expend an annual premium for such coverage in excess of two hundred percent (200%) of the last annual premium paid by the Target for such insurance prior to the date of this Agreement, which amount is set forth on Section 5.09(c) of the Target Disclosure Letter (the “Maximum Premium”). If such insurance coverage cannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation will obtain that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Maximum Premium.
(d) The obligations of Acquirer and the Surviving Corporation under this Section 5.09 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.09 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.09 applies shall be third party beneficiaries of this Section 5.09, each of whom may enforce the provisions of this Section 5.09).
(e) In the event the 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations set forth in this Section 5.09. The 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 Target or any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 5.09 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 2 contracts
Samples: Merger Agreement (Vaporin, Inc.), Merger Agreement (Vapor Corp.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directors, officers or employees and ending on the sixth (6th) anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountTime, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, determined as of the Effective Time when acting in such capacity) (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities awards paid in settlement (collectively, "Costs") incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a "Proceeding"), arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and connection with matters existing or occurring at or prior to the Effective Time (including the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Michigan Law and its Company Articles of Incorporation and Company Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, also shall advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in enforcing such Person's rights under this Section 7.10, to the fullest extent permitted that such indemnification with respect to or advancement of such expenses is authorized under applicable law the Company Articles of Incorporation, the Company Bylaws or the articles of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnificationindemnification pursuant to this Section 7.10); provided, further, that any determination required to be made with respect to whether an officer's or director's conduct complies with the standards set forth under Michigan Law and the Company's Articles of Incorporation and Bylaws shall be made by independent counsel selected by the Surviving Corporation and approved by a majority of the Indemnified Parties who are seeking indemnity with respect to such Proceeding (and if such parties cannot agree, counsel will be selected by Judicial Arbitration and Mediation Services). In the event of any such Proceeding (x) neither Parent nor 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, and (y) the Surviving Corporation shall cooperate in the defense of any such matter, and no such settlement shall affect the Surviving Corporation's indemnification obligations hereunder. 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 7.10, (i) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, using Xxxxx Day as counsel or such other counsel as may be selected by the board of directors of the Surviving Corporation and approved by a majority of the Indemnified Parties who are seeking indemnity with respect to such Proceeding (and if such parties cannot agree, counsel will be selected by Judicial Arbitration and Mediation Services), (ii) each Indemnified Party shall be entitled to retain his or her own counsel at the Surviving Corporation's expense (which may be Xxxxx Day) if the Surviving Corporation shall elect not to control the defense of any such Proceeding and (iii) no Indemnified Party shall be liable for any settlement effected without his or her prior express written consent.
(db) Nothing in this Agreement is intended toAny Indemnified Party wishing to claim indemnification under Section 7.10(a), upon learning of any such Proceeding, shall be construed promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or shall release, waive or impair the Surviving Corporation of any rights liability it may have to directors' such Indemnified Party except to the extent such failure materially prejudices the indemnifying Party.
(c) The provisions in the Surviving Corporation's articles of incorporation and officers' insurance claims under any policy that is or has been in existence bylaws with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company Articles of Incorporation and Company Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policiesindividuals.
Appears in 2 contracts
Samples: Merger Agreement, Agreement and Plan of Merger
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any Person may have under any agreement, officers document, law or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years Plan, from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the each Surviving Corporation to shall indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of such Surviving Corporation and its Subsidiaries (the "“Indemnified Parties"“), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including attorneys’ fees and disbursements (collectively, "“Costs") ”), incurred in connection with any suit, claim, action, suitproceeding, proceeding arbitration, mediation or governmental investigation, whether civil, criminal, administrative or investigativeinvestigative (an “Action”), arising out of or pertaining to matters relating to the fact that the Indemnified Party is or was an officer, director, fiduciary or agent of BioLite or BioKey, as applicable or any of their duties respective Subsidiaries or actions in their capacity as officers and directors and existing or occurring at or prior another entity if such service to the Effective Timeother entity was at the request or for the benefit of BioLite or BioKey, as applicable or any of their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted provided under applicable law (Law and Parent shallBioLite or BioKey’s or a Subsidiary’s Articles of Incorporation or Bylaws, or as applicable, as at the date hereof. In the event of any such Action, each indemnified Person shall cause be entitled to advancement of expenses incurred in the defense of any Action from the applicable Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent that BioLite or BioKey or their respective Subsidiaries, as applicable, would be permitted under applicable law provided Law and BioLite’s, BioKey’s, or their respective Subsidiaries’ Articles of Incorporation or Bylaw, as applicable, as at the person date hereof; provided, that such Person shall execute and deliver an undertaking that such Person shall return such amounts to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances BioLite or BioKey, as applicable, if it is ultimately determined that such person is Person was not entitled to such funds.
(b) Parent, BioLite, and BioKey agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) now existing in favor of the current or former directors or officers of BioLite, BioKey or their respective Subsidiaries as provided in their Articles of Incorporation or Bylaws (or comparable organizational documents) and any indemnification or other agreements of BioLite, BioKey or their respective Subsidiaries, as applicable, as in effect on the date of this Agreement shall be assumed by the applicable Surviving Corporation and its Subsidiaries in the applicable Merger, without further action, at the Effective Time and shall survive the applicable Merger and shall continue in full force and effect in accordance with their terms. Further, the Articles of Incorporation and Bylaws of the Surviving Corporations and their Subsidiaries 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 BioLite’s, BioKey’s and their respective Subsidiaries’ Articles of Incorporation and Bylaws, as applicable, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals, except as amendments may be required by the NRS or CGCL, as applicable, during such period.
(c) For a period of not less than five (5) years after the Effective Time, Parent shall cause to be in effect either (i) BioLite’s and BioKey’s and their respective Subsidiaries’ directors’ and officers’ liability insurance covering each Person currently covered by BioLite’s and BioKey’s and their respective Subsidiaries’ directors’ and officers’ liability insurance for acts or omissions occurring prior to the Effective Time by way of purchasing a “tail” or (ii) the Parent may substitute thereof policies of another insurance company, reasonably acceptable to the Board of Directors of BioLite and BioKey, as applicable, the material terms of which, including coverage and amount, are no less favorable in any material respect to such Persons than the most favorable of the Parent’s, BioLite’s and BioKey’s policies in effect immediately prior to the date hereof, as applicable; and provided, further, that in no event shall Parent, BioLite or BioKEy or their respective Subsidiaries be required to pay aggregate premiums for insurance under this Section 7.6(c) in excess of 125% of the amount of the aggregate premiums paid by the Parent, BioLite, BioKey, or their respective Subsidiaries, as applicable, for policy year 2016-2017 for such purpose, or notwithstanding such amount, not less than a reasonable amount in view of industry practices. The Board of Directors of BioLite and BioKey shall each have the right to modify, in their discretion the ratio of “Side A” Coverage to “Side B” Coverage without regard to the existing percentage allocation in their respective existing coverage.
(d) Nothing in this Agreement This covenant is intended toto be for the benefit of, and shall be construed to or shall releaseenforceable by, waive or impair any rights to directors' each of the Indemnified Parties and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood their respective heirs and agreed that the legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, contract or otherwise.
(e) In the event that either Surviving Corporation or 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 majority of its properties and assets to any Person, then, and in each such case to the extent necessary, proper provision shall be made so that the successors and assigns of such Surviving Corporation shall succeed to the obligations set forth in this Section 6.7 is not prior to or 7.6.
(f) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in substitution for any such claims under such policiesenforcing the indemnity and other obligations provided in this Section 7.6.
Appears in 2 contracts
Samples: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directors, officers or employees through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Entity shall indemnify and hold harmless each present (as of the Effective Time) and former director and officer of the Company or any of its subsidiaries (in each case, when acting in such capacity) (the “Indemnified Parties”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”), arising out of, relating to or in connection with the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or serving in such capacity at the request thereof or any acts or omissions occurring or alleged to occur prior to the Effective Time in such person’s capacity as a director or officer of the Company or any of its subsidiaries or serving in such capacity at the request thereof, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Maryland Law and its Company Charter and Company Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent or the Surviving Entity shall advance expenses (including reasonable legal fees and expenses) incurred in the defense of any Proceeding to the fullest extent permitted under applicable Law, the Company Charter, the Company Bylaws or the certificate of incorporation, articles of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification pursuant to this Section 6.10); provided further that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Maryland Law and the Company’s Charter and the Company’s Bylaws shall be made by independent counsel selected by the Surviving Entity. In the event of any such Proceeding (x) neither Parent nor the Surviving Entity 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, and (y) the Surviving Entity 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 Entity shall have the right to control the defense thereof after the Effective Time, (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Surviving Entity shall elect to control the defense of any such Proceeding, (iii) the Surviving Entity shall pay all reasonable fees and expenses of any one such counsel retained by an Indemnified Party promptly after statements therefor are received, whether or not the Surviving Entity 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.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.10, upon learning of any such Proceeding, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Entity of any liability it may have to such Indemnified Party except to the extent such failure actually prejudices the indemnifying Party.
(c) The provisions in the Surviving Entity’s limited partnership agreement and certificate of limited partnership with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Charter and the Company’s Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(d) The Company shall purchase from insurance carriers with comparable credit ratings, no later than the Effective Time, a six-year prepaid “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time, including the Transactions, and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance; provided that in no event will the premium of such insurance coverage exceed 300% of the current annual premium paid by the Company for such purpose. In the event the Company elects to purchase such a “tail policy”, Parent shall cause maintain such “tail policy” in full force and effect and continue to be maintained honor their respective obligations thereunder. If the Company elects not to purchase such a “tail policy”, then Parent shall maintain at no expense to the beneficiaries, in effect for at least six years from the Effective Time the current policies of the directors' ’ and officers' ’ liability insurance and fiduciary liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageousadvantageous to any beneficiary thereof) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted Time and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance; provided that in no event will the premium of such insurance coverage exceed 300% of the current annual premium paid by the Company for such purpose. Parent agrees to honor and perform under all indemnification agreements entered into by the Company or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying any of its subsidiaries with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)any Indemnified Party.
(de) If Parent or the Surviving Entity or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or Surviving Entity or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Entity shall assume or succeed to all of the obligations set forth in this Section 6.10.
(f) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the Company Charter or Company Bylaws or the comparable governing instruments of any of its subsidiaries, or under any applicable Contracts or Laws. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its subsidiaries or its or their respective officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.10 is not prior to to, or in substitution for for, any such claims under any such policies.
(g) The provisions of this Section 6.10 shall survive the Merger for a period of six years 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.
Appears in 2 contracts
Samples: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at For six (6) years from and after the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountTime, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director director, officer and officer employee of the CompanyCompany or any of its subsidiaries (in each case, when acting or having acted in such capacity), determined as of the Effective Time (the "“Indemnified Parties"”), against any costs or and expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding arbitration, proceeding, investigation, mediation, consent decree, audit or investigationinquiry, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Law, the Certificate of Incorporation, the Company Bylaws and the certificate of incorporation and bylaws, or equivalent governing documents, of any of the Company’s subsidiaries, and any indemnification agreements with any directors, officers and employees of the Company or any of its subsidiaries in effect on the date of this Agreement to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, shall also advance fees and expenses (including reasonable attorneys' fees’ fees and expenses) as incurred to the fullest extent permitted under applicable law Law; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification).
(db) Nothing From and after the Effective Time, the provisions in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' the Surviving Corporation’s certificate of incorporation and officers' insurance claims under any policy that is or has been in existence bylaws with respect to indemnification, advancement of expenses and exculpation of former or present directors, officers and employees shall be no less favorable to such directors, officers and employees than such provisions contained in the Company’s Certificate of Incorporation and Company Bylaws in effect immediately before the Effective Time.
(c) Prior to the Effective Time, the Company shall be permitted and, if the Company fails to do so, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay for “tail” insurance policies for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time, that shall be from an insurance carrier with the same or better credit rating as the Company’s insurance carrier as of the date hereof with respect to directors’ and officers’ liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage (including terms relating thereto) that are at least as favorable as the Company’s existing policies with respect to matters existing or occurring prior to the Effective Time (including in connection with this Agreement, the Merger or the transactions contemplated thereby); provided, however, that in no event shall the Company expend, or shall Parent or the Surviving Corporation be required to expend, for such policies an aggregate premium amount in excess of three hundred percent (300%) of the annual premiums currently paid by the Company for such insurance. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, (1) the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date of this Agreement with benefits and levels of coverage (including terms relating thereto) that are at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or (2) the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, obtain D&O Insurance for such six (6) year period with benefits and levels of coverage (including terms relating thereto) that are at least as favorable as the Company’s existing policies as of the date of this Agreement; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium amount in excess of three hundred percent (300%) of the annual premiums currently paid by the Company for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the best available coverage for a cost not exceeding such amount. The Surviving Corporation shall maintain such policies in full force and effect, and continue to honor the obligations thereunder for a period of not less than six (6) years from and after the Effective Time.
(d) The provisions of this Section 6.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs, successors and representatives.
(e) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the under the Certificate of Incorporation, the Company Bylaws and the certificate of incorporation and bylaws, or equivalent governing documents, of any of its officersthe Company’s subsidiaries, directors or employees, it being understood and agreed that any indemnification agreements in effect on the indemnification provided for in date of this Section 6.7 is not prior to or in substitution for any such claims under such policiesAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Rite Aid Corp), Merger Agreement (Walgreens Boots Alliance, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directors, officers or employees and ending on the sixth anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, each of Parent and the Surviving Corporation agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as Company or any of the Effective Time its Subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities (collectivelyawards paid in settlement, "Costs") incurred in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and connection with matters existing or occurring at or prior to the Effective Time (including the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Delaware Law and the Certificate of Incorporation and Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, also shall advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 6.9, to the fullest extent permitted that such indemnification with respect to or advancement of such expenses is authorized under applicable law the Certificate of Incorporation, the Bylaws or the certificate of incorporation and bylaws, or equivalent organizational documents, of any Subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined by a final and non-appealable determination by a court of competent jurisdiction that such person Person is not entitled to indemnification pursuant to this Section 6.9). 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, and (y) the Surviving Corporation shall 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 6.9, (i) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, the Surviving Corporation will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto), (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, and (iii) no Indemnified Party shall be liable for any settlement effected without his or her prior express written consent.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.9(a), upon learning of any such Proceeding, shall promptly notify Parent thereof in writing, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying Party.
(c) Unless otherwise prohibited by applicable Law, the provisions in the Surviving Corporation’s certificate of incorporation and bylaws with respect to indemnification), advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Certificate of Incorporation and Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(d) Nothing in this Agreement is intended toPrior to the Effective Time, the Company shall be construed to obtain and fully pre-pay the premium for (and following the Effective Time, Parent shall maintain, or shall releasecause the Surviving Corporation to maintain, waive or impair any rights at no expense to the beneficiaries, with reputable and financially sound carriers) a run-off “tail” policy of the directors' ’ and officers' ’ liability insurance and fiduciary liability insurance maintained by the Company (collectively, the “D&O Insurance”) in each case for a claims under any policy that reporting or discovery period (whichever is or has been in existence greater) of six (6) years from and after the Effective Time with respect to any claim arising from facts or events that existed or occurred at or prior to the Effective Time with terms, conditions, retentions, coverage limits and limits of liability that are at least as favorable as the coverage provided under the Company’s existing policies in effect on the date hereof. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of six (6) years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions, coverage limits and limits of liability that are at least as favorable as the coverage provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable insurance as the D&O Insurance (from reputable and financially sound carriers) for such six-year period with terms, conditions, retentions and limits of liability that are at least as favorable as the coverage provided under the Company’s existing policies as of the date hereof. Notwithstanding the foregoing, (x) in no event shall the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution Surviving Corporation expend for any such claims under policies pursuant to this Section 6.9(d) an annual premium amount in excess of 300% of the aggregate of the annual premiums currently paid by the Company for such policiesinsurance, and (y) if the annual premiums of such insurance coverage exceed such maximum amount, the Company or the Surviving Corporation shall obtain a policy with the greatest coverage available for such maximum amount.
Appears in 2 contracts
Samples: Merger Agreement (American Renal Associates Holdings, Inc.), Merger Agreement (American Renal Associates Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From the Effective Time were directors, officers or employees through the sixth anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from date on which the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountoccurs, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) or former officer, director or employee of the Company and its Subsidiaries (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesfines and reasonable fees, lossescosts and expenses, claims, damages or liabilities including 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 or pertaining to (i) the fact that the Indemnified Party is or was an officer, director or employee of the Company or any of its Subsidiaries or (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (including this Agreement and the Stockholder Agreement and the transactions and actions contemplated hereby and thereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause law; provided that no Indemnified Party may settle any such claim without the prior approval of the Surviving Corporation to(which approval shall not be unreasonably withheld or delayed). Each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, also advance fees and expenses (including reasonable attorneys' fees) as incurred to action, suit, proceeding or investigation from the fullest extent permitted under applicable law Surviving Corporation within ten business days of receipt by the Surviving Corporation from the Indemnified Party of a request therefor; provided the that any person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, to the extent required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(b) The Certificate of Incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors, officers and employees than are presently set forth in the Certificate of Incorporation and by-laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of 39 six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) The Surviving Corporation shall maintain, at no expense to the beneficiaries, in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company with respect to matters existing or occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement and the Stockholder Agreement); provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous to any beneficiary thereof.
(d) Nothing Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) The covenants contained in this Agreement is Section 6.7 are intended toto be for the benefit of, and shall be construed to or enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives and shall release, waive or impair not be deemed exclusive of any other rights to directors' and officers' insurance claims under any policy which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that is or has been in existence with respect to the Company Surviving Corporation or any of its officerssuccessors 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, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors or assigns of the Surviving Corporation shall succeed to the obligations set forth in Section 6.6 and this Section 6.7 is not prior to or in substitution for any such claims under such policies6.7.
Appears in 2 contracts
Samples: Merger Agreement (Blount Winton M), Agreement and Plan of Merger and Recapitalization (Blount International Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall, and shall cause the Company or the Surviving Corporation, as applicable, and its Subsidiaries to, honor and fulfill in all respects the obligations of individuals the Company and its Subsidiaries under applicable provisions of Delaware law relating to indemnification of directors and officers, under the Company’s Governing Documents in effect as of the date hereof, and under any and all indemnification agreements in effect as of the date hereof between the Company or any of its Subsidiaries and any of their respective current or former directors or officers and any person who at becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time were directors(each, officers an “Indemnified Party” and, collectively, the “Indemnified Parties”), with respect to any matter arising out of, relating to, or employees in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time, including in connection with the approval of this Agreement and the Merger. In addition, from and after the Effective Time, Parent shall, and shall cause the Company or the Surviving Corporation, as applicable, 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 this Section 7.06 pursuant to the procedures set forth, and to the fullest extent provided in the Company’s Governing Documents or such indemnification agreements; provided, however, that, prior to any such advance, any Indemnified Party to whom expenses are advanced shall sign a written undertaking to repay such advanced expenses to the Surviving Corporation as soon as reasonably practicable if it is ultimately determined that such Indemnified Party is not entitled to indemnification or advancement. Further, from and after the Effective Time, Parent shall not, and shall cause the Company or the Surviving Corporation, as applicable, and its Subsidiaries not to, settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim by or before any Governmental Authority, with respect to any matter arising out of, relating to, or in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time (in which indemnification could be sought by such Indemnified Party under Delaware law, the indemnification provisions in the Company’s Governing Documents or his or her indemnification agreement), brought against any Indemnified Party, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents in writing and Parent, the Company and the Surviving Corporation shall, and shall cause its or their Subsidiaries to, cooperate in the defense of any such matter.
(b) The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, exculpation and advancement of expenses with respect to any matter arising out of, relating to, or in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time than are set forth in the Company’s Governing Documents in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of any Indemnified Party, unless such modification shall be required by law. In addition, all indemnification agreements with Indemnified Parties in existence on the date of this Agreement shall continue in full force and effect in accordance with their terms.
(c) From and after the Effective Time, Parent shall, and shall cause to be maintained the Company or the Surviving Corporation, as applicable, and its Subsidiaries to, maintain in effect for six years from the Effective Time the current policies of the all directors' ’ and officers' ’ liability insurance policies (“D&O Insurance”) currently maintained by the Company (and its Subsidiaries with respect to any matter arising out of, relating to, or in connection with any acts or omissions occurring or alleged to have occurred prior to the Effective Time, including in connection with the approval of this Agreement and the Merger, provided that Parent the Company or the Surviving Corporation, as applicable, may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which that are no less favorable in the aggregate to the insured with such policy or policies underwritten by a carrier with the same or better A.M. Best rating (and provided, further, that such substitution shall not materially less advantageous) result in gaps or lapses of coverage with respect to matters or events occurring prior to before the Effective Time to the extent availableTime); further, provided, however, that in no event shall Parent the Company or the Company Surviving Corporation, as applicable, be required to expend pursuant to this Section 7.06(c) more than an amount per year equal to 200% two hundred fifty percent (250%) of current annual premiums paid by the Company for such insurance (which amounts under premiums the Company represents and warrants to be approximately eight hundred seventy thousand dollars ($870,000) in the aggregate). In the event that, but for the proviso to the immediately preceding sentence, the Company or the Surviving Corporation, as applicable, would be required to expend more than two hundred fifty percent (250%) of the current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of paid by the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Company or the Surviving Corporation Corporation, to obtain the maximum amount of such insurance obtainable by payment of annual premiums equal to two hundred fifty percent (250%) of the current annual premiums paid by the Company. In lieu of the foregoing, Parent may, on behalf of the Company or the Surviving Corporation, as applicable, elect to obtain prepaid insurance policies prior to the Effective Time, which policies provide the Indemnified Parties with D&O Insurance coverage of equivalent amount and on at least as favorable terms in the aggregate as that provided by the Company’s current D&O Insurance policies for an aggregate period of at least six years with respect to claims arising out of, relating to, also advance fees and expenses (including reasonable attorneys' fees) as incurred or in connection with any acts or omissions occurring or alleged to have occurred prior to the fullest extent permitted under Effective Time, including in connection with the approval of this Agreement and the Merger. If such prepaid policies have been obtained prior to the Effective Time, which the Company may only obtain with the prior written consent of Parent (such consent not to be unreasonably withheld) Parent shall, and shall cause the Company or the Surviving Corporation, as applicable law provided to, maintain such policies in full force and effect, and continue to honor the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)obligations thereunder.
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to In the event the Company or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its officersproperties and assets to any person, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors and assigns of the Company or the Surviving Corporation, as the case may be, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 6.7 7.06.
(e) This Section 7.06 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of the Company, Parent and Surviving Corporation. This Section 7.06 shall not prior be amended in a manner that is adverse to the Indemnified Parties (including their successors and heirs) or terminated without the consent of the Indemnified Parties (including their successors and heirs) affected thereby. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in substitution for any such claims under such policiesthis Section 7.06.
Appears in 2 contracts
Samples: Merger Agreement (Navteq Corp), Merger Agreement (Nokia Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation Entity to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the MGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors) and the Constituent Documents of the Company in effect on the date of this Agreement, to indemnify, defend and hold harmless each (and advance expenses, provided the Person to whom expenses are advanced provides a reasonable and customary undertaking (which shall not include posting of any collateral) to repay such advances if it is ultimately determined that such Person is not entitled to indemnification) the present and former director directors and officer officers of the CompanyCompany and the Company Subsidiaries, determined as of the Effective Time and any fiduciaries under any Company Benefit Plan (the "each, an “Indemnified Parties"Party”), against any and all costs or expenses (including reasonable attorneys' fees’ fees and expenses), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, arising out of (in whole or in part), relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement or the Merger or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Timetransactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time.
(b) From and after the Effective Time, Parent and the Surviving Entity shall not settle, compromise or consent to the entry of any judgment in any actual or threatened claim, action, suit, proceeding or investigation relating to any circumstances, developments or matters in existence at or prior to the Effective Time, or acts or omissions occurring at or prior to the Effective Time (each, a “Claim”), for which indemnification could be sought by an Indemnified Party hereunder, unless (i) (A) such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim and (B) such settlement, compromise or consent does not include or provide for any acknowledgement or other statement of fault or wrongdoing by any Indemnified Party, or (ii) such Indemnified Party otherwise consents in writing to such settlement, compromise or consent (such consent not to be unreasonably conditioned, withheld or delayed). Parent, the Surviving Entity and the Indemnified Parties shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. In the event of any Claim, Parent shall have the right to assume the defense thereof, except that if legal counsel for the Indemnified Party advises that there are issues which raise actual or potential conflicts of interest between Parent and the Indemnified Party, the Indemnified Party may retain legal counsel satisfactory to it, and Parent shall pay all reasonable and documented fees and expenses of such legal counsel for the Indemnified Party pursuant to Section 6.8(a); provided, however, that Parent shall be obligated pursuant to this Section 6.8(b) to pay for only one firm of legal counsel for all Indemnified Parties in any jurisdiction unless the use of one legal counsel for such Indemnified Parties would present such legal counsel with a conflict of interest (provided that the fewest number of legal counsels necessary to avoid conflicts of interest shall be used).
(c) For a period of six (6) years after the Effective Time, the Surviving Entity shall, and Parent shall cause the Surviving Entity to, honor the provisions in the Company’s Constituent Documents in effect as of the date of this Agreement providing for indemnification, advancement of expenses and exculpation of Indemnified Parties, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Law.
(d) Nothing If Parent or the Surviving Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or (ii) of this sentence so that the successors and assigns of Parent or the Surviving Entity, as the case may be, shall assume all of the obligations set forth in this Agreement Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Entity shall comply with, and shall not, directly or indirectly, amend, modify, limit or terminate, the advancement of expenses, exculpation and indemnification provisions of any agreements between the Company and any of the Indemnified Parties in effect as of the date of this Agreement.
(f) In the event that the Company’s directors’ and officers’ liability insurance policies in effect on the date hereof (the “D&O Insurance”) shall have lapsed prior to the Effective Time or its runoff coverage under the D&O Insurance otherwise would not survive for a period of not less than six (6) years after the Effective Time, Parent shall cause the Surviving Entity to procure and maintain, for a period of not less than six (6) years after the Effective Time, directors’ and officers’ liability insurance policies of at least the same coverage and amounts with reputable and financially sound carriers containing terms no less advantageous to such former directors or officers and that does not result in gaps or lapses of coverage with respect to matters occurring on or prior to the Effective Time; provided, that in no event shall Parent or the Surviving Entity be required to pay annual premiums in the aggregate of more than an amount equal to 300% of the current annual premiums paid by the Company for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; provided further that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Parent and the Surviving Entity shall procure and maintain for such six-year period the most advantageous policies as can be reasonably obtained for the Maximum Amount. In lieu of the foregoing (and in the event that the D&O Insurance shall have lapsed prior to the Effective Time or its runoff coverage under the D&O Insurance otherwise would not survive for a period of not less than six (6) years after the Effective Time), prior to the Effective Time, Parent or the Company shall have the option to cause coverage to be extended under the Company’s D&O Insurance by obtaining a six-year “tail” policy or policies on terms and conditions no less advantageous than the Company’s existing D&O Insurance, subject to the limitations set forth in the provisos above in this Section 6.8(f), and such “tail” policy or policies shall satisfy the provisions of this Section 6.8(f).
(g) This Section 6.8 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Entity. Each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and, following the Effective Time, shall be construed entitled 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 enforce the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for covenants contained in this Section 6.7 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is not prior denied by Parent and/or the Surviving Entity, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Parent or the Surviving Entity shall pay such Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred in substitution for connection with pursuing such claim against Parent and/or the Surviving Entity. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to any rights such claims Indemnified Parties may have under such policiesthe Constituent Documents of the Company, the Constituent Documents of any of the Company Subsidiaries or the Surviving Entity or under any applicable Contracts, insurance policies or Laws.
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder In the event of individuals who at the Effective Time were directorsany threatened or actual Legal Action, officers whether civil, criminal or employees administrative, including any such Legal Action or investigation in which any present or former director or officer of the Company.
Company or any of its Subsidiaries (btogether, the “Indemnified Parties”) Parent shall cause is, or is threatened to be maintained be, made a party based in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any action or failure to take action by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring any such Person in such capacity taken prior to the Effective Time (including with respect to any action or failure to take action occurring in connection with the extent available; providedapproval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, and the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(ceach, an “Indemnifying Party”) For six years will, jointly and severally, from and after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify indemnify, defend and hold harmless each present harmless, as and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under or required by applicable law Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving Corporation to, also promptly advance fees and all out-of-pocket expenses of each Indemnified Party in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys' fees’ fees and disbursements) as are incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the fullest extent permitted under required by the DGCL or other applicable law provided Law or the person to whom expenses are advanced provides a customary undertaking complying with applicable law Company Organizational Documents) that such Indemnified Party undertakes to repay such advances amount if it is ultimately determined that such person Indemnified Party is not entitled to indemnification)be indemnified under the DGCL or other applicable Law or the Company Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action or investigation effected without its prior written consent.
(db) Nothing For a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to effect the Company’s current directors' ’ and officers' ’ liability insurance claims under any policy that is and fiduciary liability insurance (the “D&O Insurance”) in respect of acts or omissions occurring at or prior to the Effective Time, covering each Person currently covered by the D&O Insurance (a complete and accurate copy of which has been in existence heretofore made available to Parent), on terms with respect to the coverage, deductible and amounts no less favorable in the aggregate than those of the D&O Insurance in effect on the date of this Agreement; provided, however, that (x) in satisfying its obligations under this Section 5.7(b) the Surviving Corporation shall not be obligated to pay annual premiums in excess of 200% of the amount currently paid by the Company or any (which premiums are set forth in Section 5.7(b) of its officers, directors or employeesthe Company Disclosure Letter), it being understood and agreed that the indemnification Surviving Corporation shall nevertheless be obligated to provide the maximum amount of such coverage as may be obtained for such annual 200% amount, and (y) in the event of the application of clause (x), any Indemnified Party, upon reasonable written notice thereof (which notice shall be provided no later than thirty (30) days prior to the Effective Time and shall set forth in reasonable detail for each Person to be covered the policy coverage, premiums, deductibles, limitations and other pertinent information), who desires to obtain additional coverage such that, when combined with the coverage obtained by the Surviving Corporation in accordance with clause (x), it provides insurance coverage equivalent to the D&O Insurance in effect on the date hereof, may so elect and, if available the Surviving Corporation shall acquire such additional coverage on behalf of such Person; provided, however, that in the event any Indemnified Party makes such an election, such Indemnified Party shall pay the portion of the premium of such D&O Insurance in excess of the amount which the Surviving Corporation is obligated to pay pursuant to this Section 5.7. The Company shall purchase, in consultation with Parent and subject to Parent’s prior approval, which approval shall not be unreasonably withheld or delayed, as soon as practicable after the date of this Agreement, a six (6)-year pre-paid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current D&O Insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. Any pre-paid tail policy purchased pursuant to this Section 5.7(b) shall be subject to a cap of $725,000 on the amount to be expended to purchase such policy. In either case, any such policy, when fully paid for, shall be in lieu of satisfying the Surviving Corporation’s obligations pursuant to the first sentence of this Section 5.7(b). The obligation to maintain insurance provided in this Section 6.7 is 5.7(b) shall continue in full force and effect for a period of not prior less than six (6) years from and after the Effective Time; provided, however, that in the event any claim or claims are asserted or made within such six (6)-year period, the Surviving Corporation shall ensure that such insurance remains in full force and effect with respect to or in substitution for any such claims until final disposition thereof.
(c) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their respective certificates of incorporation or bylaws (or similar organizational documents) for a period of six (6) years after the Effective Time, provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and advancement of expenses which are, with respect to each such entity, no less advantageous to the Indemnified Parties than the corresponding provisions contained in such organizational documents as of the date of this Agreement.
(d) If the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation (or acquirer of such assets) shall assume all of the obligations of the Surviving Corporation set forth in this Section 5.7.
(e) The provisions of this Section 5.7 will survive the Closing and are intended to be for the benefit of, and will be enforceable by, each Indemnified Party and its successors and representatives after the Effective Time and their rights under such policiesthis Section 5.7 are in addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or similar organizational documents of the Surviving Corporation or any of its Subsidiaries) or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (AMICAS, Inc.), Merger Agreement (Emageon Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee, officers officer or employees of director may have under any employment agreement or Benefit Plan or under the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies ’s certificate of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters incorporation or events occurring prior to the Effective Time to the extent available; providedbylaws, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will the Buyer shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company and its Subsidiaries (the "“Indemnified Parties"Directors and Officers”), against any costs or expenses (including reasonable attorneys' fees)all Actions, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including, attorneys’ fees and disbursements (collectively, "“Costs") ”), incurred in connection with any claim, action, suit, proceeding or investigationAction, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions taken by them in their capacity as officers and or directors and existing or occurring at or prior to the Effective TimeTime (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 (Law for a period of six years from the Effective Time. Each Indemnified Director and Parent shall, or shall cause Officer will be entitled to advancement of expenses incurred in the defense of any Action from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided the person that any Person to whom expenses are advanced provides a customary undertaking complying with applicable law 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, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals. Table of Contents Agreement and Plan of Merger – Page 45
(c) Prior to the Effective Time, the Company shall endeavor to (and if it is unable to, the Buyer shall cause the Surviving Corporation to after the Effective Time) obtain and fully pay in one payment (up to a maximum cost of 260% of the current annual premium paid by the Company for its existing coverage in the aggregate) for “tail” insurance policies (providing only for the Side A coverage for Indemnified Directors and Officers where the existing policies also include coverage for the Company) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Effective Time. The Buyer shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by the Company or any Company Subsidiary set forth in Section 7.11 of the Company Disclosure Schedule.
(d) Nothing Notwithstanding anything herein t o 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 7.11 shall continue in effect until the final disposition of such Action.
(e) The covenants contained in this Agreement is Section 7.11 are intended toto be for the benefit of, and shall be construed to or shall releaseenforceable by, waive or impair any rights to directors' each of the Indemnified Directors and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood Officers and agreed that the their respective heirs and legal representatives. The indemnification provided for in this Section 6.7 herein shall not be deemed exclusive of any other rights to which an Indemnified Director or Officer is not prior entitled, whether pursuant to Law, contract or in substitution for any such claims under such policiesotherwise.
Appears in 2 contracts
Samples: Merger Agreement (Mikron Infrared Inc), Merger Agreement (Mikron Infrared Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder For a period of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, unless otherwise required by applicable Law, the certificate of incorporation and bylaws (or equivalent organizational documents) of the Surviving Corporation and the Company Subsidiaries shall contain provisions no less favorable with respect to the indemnification and exculpation of directors and officers than are set forth in the certificate of incorporation or bylaws (or equivalent organizational documents) of the Company (or the relevant Company Subsidiary) as in effect on the date hereof. From and after the Effective Time, Parent agrees that it will or will shall cause the Surviving Corporation Corporation, to the fullest extent permitted under applicable Law (including to the greatest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), to indemnify and hold harmless (and advance funds in respect of each of the foregoing) each present and former director and director, officer or employee of the CompanyCompany and each Company Subsidiary (collectively, determined the “Indemnified Parties”), in and to the extent of their capacities as such and not as stockholders of the Effective Time (the "Indemnified Parties")Company or any Company Subsidiary, against any costs or expenses (including reasonable advancing attorneys' fees’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages or damages, liabilities and amounts paid in settlement (collectivelywith the consent of Parent, "Costs"which consent shall not be unreasonably withheld) incurred in connection with any claim, action, suit, proceeding actual or investigation, whether civil, criminal, administrative or investigativethreatened Action, arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and existing connection with any action or omission occurring or alleged to have occurred before or at or prior to the Effective TimeTime (including acts or omissions in connection with such persons serving as an officer, whether asserted director or claimed prior toother fiduciary in any entity if such service was at the request or for the benefit of the Company), at except for in any case, any claim, judgments, fines, penalties and amounts to be paid which relate to any act or after omission which constitutes a material violation of Law or resulted from or arose out of fraud, bad faith, gross negligence or willful misconduct of an Indemnified Party. In the Effective Timeevent of any such Action, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation toshall cooperate with the Indemnified Party in the defense of such Action. The Surviving Corporation shall have the right to assume control of and the defense of, also advance fees and expenses (any Action to which this Section 6.05(a) shall apply. The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys' ’ fees) as , that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 6.05(a); provided, that all advancement of expenses pursuant to the fullest extent permitted under applicable law provided the person foregoing shall be subject to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)indemnification from the Surviving Corporation.
(b) The Surviving Corporation shall either (i) cause to be obtained from an insurance carrier with the same or better rating as the Company’s current insurance carriers prior to the Effective Time a fully prepaid “tail” insurance policy with a claims period of at least six years from the Effective Time with respect to directors’ and officers’ liability insurance in amount and scope at least as favorable as the Company’s existing policies for claims arising from facts or events that occurred prior to the Effective Time or (ii) maintain the existing 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 to the Indemnified Parties from an insurance carrier with the same or better rating as the Company’s current insurance carriers) for a period of six years after the Effective Time so long as the annual premium therefor is not in excess of 300% of the most recent annual premium (the “Benchmark Premium”) paid prior to the date hereof; provided, however, that if the existing directors’ and officers’ liability insurance policies expire, are terminated or cancelled during such six-year period or require an annual premium in excess of 300% of the Benchmark Premium paid by the Company for such insurance, the Surviving Corporation will obtain as much coverage as can be obtained for the remainder of such period for a premium not in excess of 300% (on an annualized basis) of such Benchmark Premium.
(c) If Parent or the Surviving Corporation or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or shall cease to continue to exist for any reason or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation and the transferee or transferees of such properties and assets, as applicable, shall assume all of the obligations set forth in this Section 6.05.
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its the Company Subsidiaries or their respective officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.05 is not prior to or in substitution for any such claims under any such policies.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aeroflex Inc), Merger Agreement (Aeroflex Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Parent and Merger Sub agree that all rights to indemnification, advancement of individuals expenses and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company or any of its Subsidiaries (each an “Indemnified Person”) as provided under the Company Articles of Incorporation, Company By-Laws or the Company’s indemnification Contracts or undertakings, in each case as in effect on the date of this Agreement, shall be assumed by the Surviving Entity in the Merger, without further action, at the Effective Time were directorsand shall survive the Merger and shall remain in full force and effect in accordance with their terms for a period of six years (or, officers in the event that any Action is pending or employees asserted during such six-year period, until the final disposition of the Companysuch Action, if after expiration of such six-year period).
(b) For six years after the Effective Time (or, in the event that any Action is pending or asserted during such six-year period, until the final disposition of such Action, if after expiration of such six-year period), to the fullest extent permitted under applicable Law, Parent and the Surviving Entity shall, jointly and severally, 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 Effective Time (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Person for any documented, out-of-pocket 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 Parent and the Surviving Entity’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 Law; provided, however, that neither Parent nor the Surviving Entity will be liable for any settlement effected without the prior written consent of Parent and the Surviving Entity (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) The Surviving Entity shall, and Parent shall cause to be maintained the Surviving Entity to, (i) maintain in effect for a period of six years after the Effective Time, if available, the current policies of directors’ and officers’ liability insurance maintained by the Company immediately prior to the Effective Time (provided that the Surviving Entity may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its Subsidiaries when compared to the insurance maintained by the Company as of the date hereof) or (ii) obtain as of the Effective Time “tail” insurance policies with a claims period of six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of with at least the same coverage and amounts and containing terms and conditions which that are not materially less advantageous) advantageous to the directors and officers of the Company and its Subsidiaries, in each case with respect to matters claims arising out of or relating to events occurring prior to which occurred before or at the Effective Time to (including in connection with the extent availabletransactions contemplated by this Agreement); provided, however, that in no event shall Parent or will the Company Surviving Entity be required to expend more than an amount per year equal to 200annual premium for such coverage in excess of 300% of current the last annual premiums premium paid by the Company for such insurance prior to the date of this Agreement (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of “Maximum Premium”). If such insurance coverage exceed such amountcannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective TimeEntity will obtain, and Parent agrees that it will or will cause the Surviving Corporation Entity to indemnify obtain, that amount of directors’ and hold harmless each present and former director and officer of officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the CompanyMaximum Premium. Notwithstanding anything herein to the contrary, determined as of the Effective Time (the "Indemnified Parties"), against Company shall be permitted to purchase any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or such “tail” insurance policy prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) The obligations of Parent and the Surviving Entity under this Section 6.9 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 6.9 applies without the consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Persons to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9, each of whom may enforce the provisions of this Section 6.9).
(e) In the event Parent, the Surviving Entity 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Entity, as the case may be, shall assume all of the obligations set forth in this Section 6.9. The 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 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 or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.9 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 2 contracts
Samples: Merger Agreement (Genco Shipping & Trading LTD), Merger Agreement (Baltic Trading LTD)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the The Surviving Corporation shall, and Purchaser shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify indemnify, defend and hold harmless each harmless, and provide advancement of expenses to, the present and former director directors, officers and employees of Company and its Subsidiaries (each such director, officer or employee an “Indemnified Person”), in each case to the fullest extent permitted by Law, including to the fullest extent authorized or permitted by any amendments to or replacements of the CompanyDGCL adopted after the date hereof that increase the extent to which a corporation may indemnify its officers and directors or any Indemnified Person, determined as of the Effective Time (the "Indemnified Parties"), from and against any and all costs or expenses (including reasonable attorneys' ’ fees, expenses and disbursements), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative 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 at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement, the performance of Company’s obligations hereunder and the consummation of the transactions contemplated hereby or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers the Merger and directors and existing or occurring at or prior to the Effective Time, other transactions contemplated hereby) whether asserted or claimed prior to, at or after the Effective Time, .
(b) Subject to the fullest extent permitted under applicable law (and Parent following sentence, the Surviving Corporation shall, or and Purchaser shall cause the Surviving Corporation to, also advance fees at no expense to the beneficiaries, purchase as of the Effective Time a tail policy to the current policy of directors’ and officers’ liability insurance maintained by Company which tail policy shall be effective for a period from the Effective Time through and including the date six (6) years after the Closing Date (a “Reporting Tail Endorsement”) with respect to claims arising from facts or events that occurred on or before the Effective Time, and which tail policy shall contain coverage and amounts at least as favorable to the Indemnified Persons as the coverage currently provided by Company’s current directors’ and officers’ liability insurance policies (in the aggregate); provided, however, that in no event shall the Surviving Corporation be required to expend, for the entire tail policy, in excess of 300 per cent of the annual premium currently paid by Company for its current policies of directors’ and officers’ liability insurance (in the aggregate) (which premiums are hereby represented and warranted by the Company to currently be approximately $2,000,000 per annum); and, provided, further that, if the premium of such insurance coverage exceeds such amount, the Surviving Corporation after consultation with Company shall be obligated to obtain a policy or policies with the greatest coverage available for a cost not exceeding such amount. 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 Purchaser and as are reasonably acceptable to 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. Subject to both the proviso in the first sentence and to the second sentence of this Section 5.6(b), Company shall be permitted at its sole and exclusive option to purchase, after reasonable consultation with Purchaser, the Reporting Tail Endorsement (in lieu of the Surviving Corporation) prior to the Effective Time.
(c) The certificate of incorporation and bylaws of the Surviving Corporation shall include provisions for indemnification, advancement and reimbursement of expenses (including reasonable attorneys' fees) and exculpation of the Indemnified Persons on the same basis as incurred set forth in the certificate of incorporation and bylaws of Company in effect on the date hereof. Following the Effective Time, the Surviving Corporation shall, and Purchaser shall cause the Surviving Corporation to, maintain in effect the provisions in its certificate of incorporation and bylaws providing for indemnification, advancement and reimbursement of expenses and exculpation of Indemnified Persons, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law provided 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 person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)scope of the Indemnified Persons’ indemnification rights thereunder.
(d) From and after the Effective Time, Purchaser and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 5.6(d) of the Company Disclosure Schedule between Company or any Subsidiary and any of the Indemnified Persons, or any such provisions contained in the Surviving Corporation certificate of incorporation or bylaws to the extent such provisions apply to Indemnified Persons.
(e) Any Indemnified Person wishing to claim indemnification under paragraph (a) of this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Purchaser and the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Person if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Purchaser or the Surviving Corporation shall have the right to assume the defense thereof and neither Purchaser nor the Surviving Corporation shall be liable to such Indemnified Persons for any legal expenses of other counsel or any other expense subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that if Purchaser or the Surviving Corporation elects not to assume such defense or counsel or the Indemnified Persons advise that there are issues which raise conflicts of interest between Purchaser or the Surviving Corporation and the Indemnified Persons, the Indemnified Persons may retain counsel satisfactory to them, and Purchaser shall and shall cause the Surviving Corporation to pay all reasonable fees and expenses of such counsel for the Indemnified Persons promptly as statements therefor are received; provided, however, the Surviving Corporation shall be obligated pursuant to this paragraph (e) to pay for only one firm of counsel for all Indemnified Persons in any jurisdiction, (ii) the Indemnified Persons will cooperate in the defense of any such matter and (iii) neither Purchaser nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent; and provided, further, that neither Purchaser nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Person if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Person in the manner contemplated by paragraph (a) of Section 5.6 is prohibited by applicable Law.
(f) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Persons on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 5.6 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(g) The covenants contained in this Section 5.6 are intended to be for the irrevocable benefit of and to grant third-party rights to, and shall be enforceable by, each of the Indemnified Persons and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to Law, Contract or otherwise and shall be binding on all successors and assigns of Purchaser and the Surviving Corporation. The obligations of Purchaser under this Section 5.6 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person unless the affected Indemnified Person shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Person shall be a third-party beneficiary of this Section 5.6, and entitled to enforce the covenants contained in this Section 5.6. If any Indemnified Person makes any claim for indemnification or advancement of expenses under this Section 5.6 that is denied by Purchaser and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Person is entitled to such indemnification, then Purchaser or the Surviving Corporation shall pay such Indemnified Person’s reasonable costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Purchaser and/or the Surviving Corporation. The rights of the Indemnified Persons under this Section 5.6 shall be in addition to, and not in substitution for, any rights such Indemnified Persons may have under the certificate of incorporation and the bylaws of Company, the certificate of incorporation and bylaws (or comparable organizational documents) of any of Company’s Subsidiaries or the certificate of incorporation and bylaws of the Surviving Corporation or under any applicable Contracts, insurance policies or Laws and Purchaser shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by Company or any of its Subsidiaries.
(h) In the event that Purchaser, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Purchaser shall cause proper provision to be made prior to consummation of any transaction of the type described in clauses (i) and (ii) of this sentence so that the successors or assigns of Purchaser or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.6. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its respective Subsidiaries for any of their respective directors, officers, directors employees or employeesother Indemnified Person, it being understood and agreed that the indemnification provided for in this Section 6.7 5.6 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any Company Employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to matters relating to their duties the fact that the Indemnified Party is or actions in their capacity as officers and directors and existing was an officer, director, employee, fiduciary or occurring agent of the Company or any of its subsidiaries at or prior to the Effective TimeTime (including as a result of 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 the Company’s current certificate of incorporation and by-laws (subject to applicable law law). In the event of any such claim, action, suit, proceeding or investigation after the Effective Time, (x) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent or the Surviving Corporation in accordance with, and to the extent permitted by, the Company’s current certificate of incorporation and by-laws (subject to applicable law); provided that any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL or the Company’s current certificate of incorporation and by-laws, to repay such advances if it is ultimately adjudicated that such person is not entitled to indemnification, (y) neither Parent nor Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (z) Parent and the Surviving Corporation shall control the defense of any such matter and the Indemnified Parties shall cooperate with Parent and the Surviving Corporation in the defense of any such matter.
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses either (including reasonable attorneys' feesi) as incurred cause to be obtained at the Effective Time “tail” insurance policies, at no expense to the fullest extent permitted under applicable law provided beneficiaries, with a claims period of six years from the person to whom expenses are advanced provides a customary undertaking complying Effective Time, from an insurance carrier with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to the same or shall release, waive or impair any rights to directors' and officers' better credit rating as the Company’s current insurance claims under any policy that is or has been in existence carrier with respect to directors’ and officers’ liability insurance in an amount and scope and on terms, in the aggregate, at least as favorable to the Indemnified Parties as the Company’s current policies with respect to matters existing or occurring at or prior to the Effective Time; provided, that neither Parent nor the Surviving Corporation shall be required to pay more than 250% of the current premium to purchase such policy, or (ii) maintain at no expense to the beneficiaries, in effect for six years from the Effective Time the policies of directors’ and officers’ liability insurance maintained by the Company in effect on the date of this Agreement (provided, that, Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are in the aggregate at least as favorable to the beneficiaries thereof as those of such policy in effect on the date of the Agreement) with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby). Parent shall cause the Surviving Corporation to honor and perform under all indemnification agreements entered into by the Company or any of its officerssubsidiaries.
(d) Notwithstanding anything herein to the contrary, directors if any claim, action, suit, proceeding or employeesinvestigation (whether arising before, it being understood at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and agreed that shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.7.
Appears in 1 contract
Samples: Merger Agreement (Ecollege Com)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, in accordance with the Company Organizational Documents in effect on the date hereof, (i) indemnify and hold harmless, and advance expenses to, each individual who at the Effective Time were directorsis, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring any time prior to the Effective Time to the extent available; providedwas, howevera director, that in no event shall Parent officer, employee or agent of the Company be required to expend more than an amount per year equal to 200% or of current annual premiums paid by a Subsidiary of the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; each, an “Indemnitee” and, provided, further that if the annual premiums of such insurance coverage exceed such amountcollectively, the Surviving Corporation shall “Indemnitees”) with respect to Damages (including amounts paid in settlement or compromise) and Expenses (including those of legal counsel) in connection with any Legal Action (including as may be obligated to obtain administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will director or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its Subsidiaries or was acting in such capacity, determined or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or any of its Subsidiaries or taken at the request of the Company or any of its Subsidiaries (including in connection with serving at the request of the Company or any of its Subsidiaries as a representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (the "Indemnified Parties"), against including any costs or expenses Legal Action (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, as may be administrative or investigative, arising out of ) relating in whole or pertaining in part to matters the Transactions or relating to their duties the enforcement of this provision) and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from Liabilities for acts or actions in their capacity as officers and directors and existing or omissions occurring at or prior to the Effective TimeTime as provided in the Company Organizational Documents as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement, whether asserted as specified in Section 5.6(a) of the Company Disclosure Letter, providing for indemnification between the Company or claimed prior toany of its Subsidiaries and any Indemnitee. Without limiting the foregoing, at or Parent, from and after the Effective Time, to shall cause, unless otherwise required by Law, the fullest extent permitted under applicable law (certificate of incorporation and Parent shall, or shall cause bylaws of the Surviving Corporation toto contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, also advance fees and expenses which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(b) In the event of any Legal Action (including reasonable attorneys' feesas may be administrative or investigative) as incurred related to the fullest extent permitted acts or omissions covered under applicable law provided this Section 5.6 (each, a “Claim”)
(i) the person Surviving Corporation shall cooperate with the Indemnitee and its insurer in the defense of any such Claim and (ii) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any Claim pending or threatened in writing to which an Indemnitee is a party (and in respect of which indemnification could be sought by such Indemnitee hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all Liability arising out of such Claim or the Indemnitee otherwise consents.
(c) Parent shall obtain, or cause to be obtained, as of the Effective Time, a “tail” insurance policy with a claims period of six (6) years after the Effective Time with respect to directors’ and officers’ Liability insurance covering those Persons who are currently (and any additional Persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ Liability insurance policy for acts or omissions occurring at or prior to the Effective Time on terms and scope with respect to such coverage, and in amount, no less favorable to such Persons than those of such policy in effect on the date of this Agreement, which insurance shall, prior to the Effective Time, be in effect and prepaid for such six (6)-year period; provided, however, that, in no event shall the total cost for such prepaid “tail” insurance policy exceed 250% of the annual premium paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if the total cost for such prepaid “tail” policy exceeds the Premium Cap, then Parent may obtain, or cause to be obtained, a prepaid “tail” policy with the maximum coverage available for a total cost of the Premium Cap. If Parent for any reason fails to obtain or cause to be obtained such “tail” insurance policy as of the Effective Time, Parent shall continue, or cause to be continued, to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the directors’ and officers’ Liability insurance in place as of the date of this Agreement with the Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current directors’ and officers’ Liability insurance carrier.
(d) The covenants contained in this Section 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnitees and their respective heirs and legal representatives and shall not be deemed exclusive of, or in substitution for, any other rights to which an Indemnitee is entitled, whether pursuant to Law, Contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 5.6 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom expenses are advanced provides a customary undertaking complying with this Section 5.6 applies unless (x) such termination or modification is required by applicable law Law or (y) the affected Indemnitee shall have consented in writing to repay such advances if termination or modification (it is ultimately determined being expressly agreed that such person is not entitled the Indemnitees to indemnificationwhom this Section 5.6 applies shall be third party beneficiaries of this Section 5.6).
(de) In the event that Parent or 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 such case, Parent and the Surviving Corporation shall take all necessary action so that the successors or assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.6.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officersSubsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 5.6 is not prior to or in substitution for any such claims under such policies.
(g) Parent’s and the Surviving Corporation’s obligations under this Section 5.6 shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that if any Claim (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 5.6 shall continue in effect until the full and final resolution of such Claim.
Appears in 1 contract
Samples: Merger Agreement (Air Methods Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Parent shall cause the Surviving Corporation’s certificate of individuals who at the Effective Time were incorporation and bylaws to contain provisions no less favorable with respect to indemnification, advancement of expenses, and exculpation from liabilities of present and former directors, officers or officers, and employees of the CompanyCompany than are currently provided in the Certificate of Incorporation and Bylaws, which provisions may not be amended, repealed, or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals for a period of six (6) years from the Effective Time, and in the event that any Proceeding is pending or asserted or any claim made during such period, until the disposition of any such Proceeding or claim, unless such amendment, modification, or repeal is required by applicable Law, in which case Parent shall, and shall cause the Surviving Corporation to, make such changes to the certificate of incorporation and the bylaws as to have the least adverse effect on the rights of the individuals referenced in this Section 5.5.
(b) Parent shall cause to be maintained in effect for six years Without limiting any additional rights that any Person may have under any agreement or Company Plan, from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) or former director or officer of the Company (the "each, together with such Person’s heirs, executors, or administrators, an “Indemnified Parties"Party”), against any costs all obligations to pay a judgment, settlement, or penalty, and reasonable expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigationProceeding, whether civil, criminal, administrative administrative, arbitrative, or investigative, and whether formal or informal, arising out of or pertaining to matters relating to their duties any action or actions in their capacity as officers and directors and existing or omission occurring at or prior to or at the Effective Time, including any action or omission in connection with the fact that the Indemnified Party is or was an officer, director, employee, fiduciary, or agent of the Company or its Subsidiaries, or of another entity if such service was at the request of the Company, whether asserted or claimed prior to, at at, or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent would be permitted under applicable law the DGCL. In the event of any such Proceeding, Parent and the Surviving Corporation shall advance to each Indemnified Party reasonable expenses incurred in the defense of the Proceeding (provided the person that any Indemnified Party to whom expenses are advanced provides a customary shall have provided, to the extent required by the DGCL, an undertaking complying with applicable law to repay such advances if it is ultimately finally determined that such person Person is not entitled to indemnification).
(dc) Nothing Notwithstanding anything in this Agreement is intended toto the contrary, the Company may purchase prior to the Effective Time, and if the Company does not purchase prior to the Effective Time, Parent shall be construed cause the Surviving Corporation to purchase at or shall releaseafter the Effective Time, waive or impair any rights to directors' and officers' insurance claims under any a tail policy that is or has been in existence with respect to the current directors’ and officers’ liability insurance policies (“D&O Insurance”) maintained as of the date hereof by the Company, which tail policy (i) will be effective for a period from the Effective Time through and including the date six (6) years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time, (ii) will contain coverage that is at least as protective to such directors and officers as the coverage provided by such existing policies and (iii) may be obtained from an insurance carrier with the same or better credit rating as the insurance carrier of such directors’ and officers’ liability insurance policies; provided that the Company or shall not, and the Surviving Corporation shall not have any obligation to, purchase any such policy to the extent the premium for such tail policy exceeds three hundred percent (300%) of the last annual premium paid by the Company with respect to the D&O Insurance prior to the date hereof. Parent shall cause such tail policy to be maintained in full force and effect for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) Without limiting any of its officersthe rights or obligations under this Section 5.5, directors or employees, it being understood and agreed that the Surviving Corporation shall keep each of the indemnification agreements set forth in Section 5.5(d) of the Company Disclosure Letter in full force and effect in accordance with their terms. The Company has provided Parent true, correct and complete copies of each such agreement, or such agreement has been filed with the SEC and is publicly available on or prior to the Business Day immediately prior to the date hereof.
(e) This Section 5.5 shall survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Person referred to in this Section 5.5. The indemnification and advancement provided for in this Section 6.7 5.5 is not prior exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, contract, or otherwise. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity resulting from such consolidation or merger or (ii) transfers all or majority of its properties and assets to any Person, then, and in substitution for any each such claims under case, Parent shall make proper provision such policiesthat the successors and assigns of the Surviving Corporation assume the applicable obligations set forth in this Section 5.5.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder The Surviving Corporation and its Subsidiaries shall (and Parent shall cause the Surviving Corporation and its Subsidiaries to) honor and fulfill in all respects the obligations of individuals the Company and its Subsidiaries under (i) any indemnification, expense advancement and exculpation provision set forth in any certificate of incorporation or by-laws or comparable organizational documents of the Company or any of its Subsidiaries as in effect on the date of this Agreement and (ii) all indemnification agreements between the Company or any of its Subsidiaries and any of their respective current or former directors and officers and any person who at becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time were directors, officers or employees of (the Company"Indemnified Persons").
(b) Parent shall cause to be maintained in effect for For a period of six (6) years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, Persons to the fullest extent permitted under by applicable law Law against any losses, claims, damages, liabilities, costs, expenses (and Parent shall, or shall cause the Surviving Corporation to, also advance including advances for reasonable fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law Law, provided the person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification), judgments, fines and, subject to approval by Parent (which shall not be unreasonably withheld, delayed or conditioned), amounts paid in settlement in connection with any threatened or actual Action to which such Indemnified Person is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that such individual is or was a director or officer of the Company or any of its Subsidiaries, or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another person or (ii) this Agreement or any of the transactions contemplated hereby, whether asserted or arising before or after the Effective Time.
(c) Prior to the Effective Time, the Company shall, in cooperation with Parent, and, if the Company is unable to, Parent shall (or shall cause the Surviving Corporation to) obtain and fully pay for "tail" prepaid insurance policies with a claims period of at least six years from and after the Effective Time from an insurance carrier with the same or better rating as the Company's current insurance carrier with respect to directors' and officers' liability insurance and fiduciary insurance (collectively, "D&O Insurance"), for the Indemnified Persons, with terms, conditions, retentions and levels of coverage at least as favorable, in the aggregate, as the Company's existing D&O Insurance with respect to matters existing or occurring prior to the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby). If such "tail" prepaid insurance policies have been obtained, Parent shall cause the Surviving Corporation after the Effective Time to maintain such policies in full force and effect, for their full term, and to continue to honor its respective obligations thereunder. If the Company fails to obtain such "tail" prepaid insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no expense to the beneficiaries, for a period of at least six years from and after the Effective Time for the Indemnified Persons, the D&O Insurance (provided that Parent (or any successor) may substitute therefor policies of at least the same terms, conditions, retentions and levels of coverage and amounts which are, in the aggregate, as favorable to the Indemnified Persons as provided in the existing policies as of the date of this Agreement, from an insurance carrier with the same or better rating as the Company's current insurance carrier); provided, however, that in no event will Parent or the Surviving Corporation be required, and the Company shall not be permitted, to expend for such policies pursuant to this Section 7.1 an annualized premium amount in excess of 200% of the annual premiums currently paid by the Company for such insurance and, if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall, and the Company may, obtain a substantially similar policy (from an insurance carrier with the same or better rating as the Company's current insurance carrier) with the greatest coverage available for a cost not exceeding such amount. Each Indemnified Person is, and the Indemnified Persons collectively are, intended third party beneficiaries of this Section 7.1, and each such Person shall have a right to enforce the rights hereunder as if such person was a party to this Agreement.
(d) Any Indemnified Person wishing to claim indemnification under paragraph (b) of this Section 7.1, upon learning of any such Legal Proceeding, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Person, except to the extent such failure materially prejudices the indemnifying party. In the event of any such Legal Proceeding arising after the Effective Time, (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof, with counsel reasonably acceptable to the Indemnified Persons (which acceptance shall not be unreasonably withheld, delayed or conditioned), and Parent and the Surviving Corporation shall not be liable to such Indemnified Persons for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Persons advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Persons, or between the Indemnified Persons, the Indemnified Persons may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons promptly as statements therefor are received; provided, however, that Parent and the Surviving Corporation shall be obligated pursuant to this paragraph (d) to pay for only one firm of counsel for all Indemnified Persons in any jurisdiction unless the use of one counsel for such Indemnified Persons would present such counsel with a conflict of interest; provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used, (ii) the Indemnified Persons will cooperate in the defense of any such matter and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned; and provided, further, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Person if and to the extent that a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Person in the manner contemplated hereby is prohibited by applicable Law.
(e) Each Indemnified Person is, and the Indemnified Persons collectively are, intended third party beneficiaries of this Section
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officersSubsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 7.1 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Bioclinica Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee, officers officer or employees of director may have under any agreement or Benefit Plan or under the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters 's charter or events occurring prior to the Effective Time to the extent available; providedbylaws, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company or any of its Subsidiaries (the "Indemnified PartiesDirectors and Officers"), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to matters relating to their duties or actions taken by them in their capacity as officers and or directors and existing or occurring at or prior to the Effective TimeTime (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 the fullest extent permitted under applicable law (Law for a period of six years from the Effective Time. Each Indemnified Director and Parent shallOfficer shall be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or shall cause investigation from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided the person that any Person to whom expenses are advanced provides a customary an undertaking complying with applicable law 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.
(db) Nothing 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 officers than are presently set forth in the charter and bylaws of the Company and its Subsidiaries, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) On or prior to the date of this Agreement, the Company has received confirmation notices with respect to offers, on the terms and conditions set forth on Section 6.19(c) of 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 is intended toand 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 be construed provide for the Side A, B and C coverage for Indemnified Directors and Officers), on terms and conditions that have been made available to or shall releaseParent and Acquisition Corp., waive or impair any rights with a claims period of at least six years from the Offer Payment Date with respect to directors' and officers' insurance liability insurance, employee practices and fiduciary liability coverage, and with a claims under any policy that is or has been in existence period of at least three years from the Offer Payment Date with respect to plan purchaser protection from an insurance carrier with the Company same or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policies.better credit rating as the
Appears in 1 contract
Samples: Acquisition Agreement (Goodys Family Clothing Inc /Tn)
Directors’ and Officers’ Indemnification and Insurance. 42-
(a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, each of Parent and the Surviving Corporation agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, determined as of the Effective Time when acting in such capacity) (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities awards paid in settlement (collectively, "“Costs"”) actually and reasonably incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and connection with matters existing or occurring at or prior to the Effective Time (including the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Nevada Law and its Articles of Incorporation and Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, also shall advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 6.10, regardless of whether indemnification with respect to or advancement of such expenses is authorized under the fullest extent permitted under applicable law Articles of Incorporation, the Bylaws or the articles of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined by a court of competent jurisdiction that such person Person is not entitled to indemnification pursuant to this Section 6.10); provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Nevada Law and the Company’s Articles of Incorporation and Bylaws shall be made by independent counsel selected by the Surviving Corporation. In the event of any such Proceeding (x) neither Parent nor 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, and (y) the Surviving Corporation shall 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 shall have the right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, the Surviving Corporation will be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto), (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 promptly after statements therefor are received, 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.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.10(a), upon learning of any such Proceeding, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may -43-
(c) The provisions in the Surviving Corporation’s articles of incorporation and bylaws with respect to indemnification), advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Articles of Incorporation and Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(d) Parent shall maintain, or shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in effect for at least six (6) years from the Effective Time the current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof) with respect to matters existing or occurring at or prior to the Effective Time and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance. At the Company’s option, the Company may purchase from insurance carriers with comparable credit ratings, prior to the Effective Time, a six-year prepaid “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time, including the transactions contemplated hereby, and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance. In the event the Company elects to purchase such a “tail policy”, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail policy” in full force and effect and continue to honor their respective obligations thereunder; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and, provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 6.10.
(f) The provisions of this Section 6.10 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and representatives. -44-
(g) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the Articles of Incorporation or Bylaws of the Company or the comparable governing instruments of any of its subsidiaries, or under any applicable Contracts or Laws. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.10 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Diversified Restaurant Holdings, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at Without limiting any additional rights that any Person may have under any agreement, document, law or Company Plan, from and after the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountTime, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its Subsidiaries (the "“Indemnified Parties"“), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including attorneys’ fees and disbursements (collectively, "“Costs") “), incurred in connection with any suit, claim, action, suitproceeding, proceeding arbitration, mediation or governmental investigation, whether civil, criminal, administrative or investigativeinvestigative (an “Action”), arising out of or pertaining to matters relating to their duties the fact that the Indemnified Party is or actions in their capacity as officers and directors and existing was an officer, director, fiduciary or occurring at agent of the Company or prior any of its Subsidiaries or another entity if such service to the Effective Timeother entity was at the request or for the benefit 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 provided under applicable law (Law and Parent shallthe Company’s or Subsidiary’s Certificate of Incorporation or Bylaws as at the date hereof. In the event of any such Action, or each indemnified Person shall cause be entitled to advancement of expenses incurred in the defense of any Action from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent that the Company or its Subsidiaries, as applicable, would be permitted under applicable law provided Law and the person Company’s or its Subsidiaries’ Certificate of Incorporation or Bylaw as at the date hereof; provided, that such Person shall execute and deliver an undertaking that such Person shall return such amounts to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances the Company if it is ultimately determined that such person is Person was not entitled to indemnification)such funds.
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 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) thereunder From and after the Effective Time through the sixth anniversary of individuals the date on which the Effective Time occurs, each of Parent and the Surviving Corporation and their respective applicable Subsidiaries shall, (i) indemnify and hold harmless each individual who at the Effective Time were directorsis, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring any time prior to the Effective Time to the extent available; providedwas, however, that in no event shall Parent a director or officer of the Company be required to expend more than an amount per year equal to 200% or of current annual premiums paid by a Subsidiary of the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; each, an “Indemnitee” and, provided, further that if the annual premiums of such insurance coverage exceed such amountcollectively, the Surviving Corporation shall be obligated “Indemnitees”) with respect to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeall claims, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Companyliabilities, determined as of the Effective Time (the "Indemnified Parties")losses, against any costs or expenses (including reasonable attorneys' fees)damages, judgments, fines, lossespenalties, claims, damages costs (including amounts paid in settlement or liabilities compromise) and expenses (collectively, "Costs"including fees and expenses of legal counsel) incurred in connection with any claim, suit, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or pertaining to matters relating to their duties such Subsidiary or actions (B) acts or omissions by an Indemnitee in their the Indemnitee’s capacity as officers a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions), to the same extent such Indemnitees are entitled to indemnification as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable Law, the Company Charter Documents, the organizational documents of such Subsidiaries or any indemnification agreements in existence on the date of this Agreement and directors made available to Parent prior to the date hereof, and existing (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective TimeTime as provided in the Company Charter Documents and the organizational documents of such Subsidiaries as currently in effect; provided, whether asserted or claimed prior tohowever, that if, at or after any time prior to the sixth anniversary of the Effective Time, any Indemnitee delivers to Parent or the Surviving Corporation a written notice asserting a claim for indemnification under this Section 5.08(a), 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. Without limiting the foregoing, Parent, from and after the Closing until six (6) years from the Effective Time, shall cause, unless otherwise required by Law, the certificate of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted under applicable law Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified or superseded in any manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from the Closing until six (and 6) years from date on which the Effective Time occurs, Parent shall, or and shall cause the Surviving Corporation to, also advance any expenses (including the fees and expenses of legal counsel) of any Indemnitee under this Section 5.08 (including reasonable attorneys' feesin connection with enforcing the indemnity and other obligations referred to in this Section 5.08) as incurred to the fullest same extent permitted under such Indemnitees are entitled to advancement of expenses as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable law provided Law, the person Company Charter Documents, the organizational documents of such Subsidiaries or any indemnification agreements in existence on the date of this Agreement and made available to Parent prior to the date hereof, provided, however, that the individual to whom expenses are advanced provides a customary provides, if requested by Parent, an undertaking complying with applicable law to repay such advances if it is ultimately shall be determined that such person individual is not entitled to indemnificationbe indemnified pursuant to this Section 5.08(a) . The Surviving Corporation shall reasonably cooperate in good faith in the defense of any such matters; provided, that requests by Indemnitees or their Representatives to interview Representatives, examine the books and records or access the properties of the Surviving Corporation shall be made during normal business hours and upon reasonable notice and shall not significantly or materially impact the operations of the Surviving Corporation.
(b) Prior to the Effective Time, the Company may purchase, for an aggregate amount not to exceed 300% of the current aggregate annual premium (the “Maximum Premium”), a six-year prepaid “tail policy” (“Tail Policy”) providing coverage for the Indemnitees on terms and conditions providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, covering without limitation the Transactions; provided, however, that if the premium for such Tail Policy shall exceed the Maximum Premium, the Company shall provide or cause to be provided a Tail Policy for the applicable individuals with the best coverage as shall then be available at an annual premium equal to the Maximum Premium. After the Effective Time, the Surviving Corporation shall cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder and neither Parent nor the Surviving Corporation shall have any further obligations under this Section 5.08(b).
(c) The provisions of this Section 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Charter Documents, by Contract or otherwise (it being expressly agreed that the Indemnitees to whom this Section 5.08 applies shall be third party beneficiaries of this Section 5.08).
(d) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 5.08.
(e) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' Indemnitees’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officersSubsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 5.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Us Geothermal Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses Time (including reasonable attorneys' feesany matters arising in connection with the Transactions or this Agreement), now existing in favor of the current or former directors, officers or employees, as the case may be, of the Company or its Subsidiaries (the “Indemnified Parties”) as incurred to provided in the fullest extent permitted under applicable law provided Company Articles, the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
Company Bylaws (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to equivalent organizational documents of the Company or any of its Subsidiaries) or in any agreement (a “Company Indemnity Agreement”), each as in effect on the date of this Agreement, shall survive the Offer and the Merger and shall continue in full force and effect in accordance with their terms. The Company has made available to Parent true and complete copies of all Company Indemnity Agreements.
(b) Without limiting the provisions of Section 6.4(a), from and after the Effective Time and for a period of six (6) years thereafter, the Surviving Entity will (or Parent shall cause the Company or the Surviving Entity, as applicable, to): (i) indemnify, defend and hold harmless to the fullest extent permitted by applicable Law, each Indemnified Party from and against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement (including, in each case, any interest or assessments thereon) in connection with any Action, whether civil, criminal, administrative or investigative, to the extent such Action arises out of or pertains to: (A) any action or omission or alleged action or omission in such Indemnified Party’s capacity as a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time; or (B) the Merger, this Agreement and any other Transaction and (ii) provide advancement of expenses (including reasonable attorneys’ fees) of any Indemnified Party incurred in connection with any such Action upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified. Notwithstanding the foregoing, the Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) The Surviving Entity will (and Parent shall cause the Company or the Surviving Entity, as applicable, to) provide, for a period of not less than six (6) years after the Effective Time, the Indemnified Parties who are insured under the Company’s directors’ and officers’ insurance and indemnification policy with an insurance and indemnification policy (from either (i) the Company’s existing insurance carrier or (ii) an insurance carrier that is reasonably satisfactory to the Company) that provides coverage for events occurring at or prior to the Effective Time (the “D&O Insurance”) that is no less favorable than the existing policy of the Company; provided, directors or employees, it being understood and agreed that the cost of such D&O Insurance shall in no event exceed three hundred percent (300%) of the annual premium paid as of the date hereof by the Company for such insurance (which amount is set forth in Section 6.4(c) of the Company Disclosure Schedule). Notwithstanding anything to the contrary in this Agreement, the Company may and at Parent’s request shall, prior to the Effective Time, purchase a “tail” directors’ and officers’ insurance and indemnification policy, provided, that payment for each year of insurance coverage provided by such “tail” directors’ and officers’ insurance policy shall not exceed three hundred (300%) of the annual premium paid as of the date hereof by the Company. Any such “tail” directors’ and officers’ insurance and indemnification policy will satisfy the Surviving Entity’s obligation under this Section 6.4(c) to provide D&O Insurance. In the event the cap on amounts to be paid for D&O Insurance, whether for a new policy or tail coverage, is reached, the most protective policy of D&O insurance that can be acquired for a premium equal to such cap shall be purchased.
(d) The Indemnified Parties to whom this Section 6.4 applies shall be third party beneficiaries of this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of each Indemnified Party and his or her successors, heirs and Representatives.
(e) Notwithstanding anything herein to the contrary, this Section 6.4 shall survive the consummation of the Merger and shall be binding, jointly and severally, on all successors and assigns of the Company, the Surviving Entity and its Subsidiaries, and shall be enforceable by the Indemnified Parties and their successors, heirs or Representatives. In the event that the Company or the Surviving Entity or any of their respective successors or assigns 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 transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that such other Person or the successors and assigns of Parent or the Surviving Entity as the case may be shall succeed to its obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.4.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Acceptance Time, Parent shall, and shall cause the Company or the Surviving Corporation (as the case may be) to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of individuals who the TBCA adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify, defend and hold harmless (and advance expenses from time to time as incurred to the fullest extent permitted by Law, provided the Person to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA and provides statements and reasonable documentation therefor) the present and former directors and officers of the Company and any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) at the Effective Time were directors, officers or employees request of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms each an “Indemnified Party”) from and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any and all actual, documented costs or expenses (including reasonable attorneys' ’ fees, expenses and disbursements), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, arising out of, relating to, or in connection with, any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of the Transaction Agreements and the Transactions or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTransactions, whether asserted or claimed prior to, at or after the Effective Time; provided, that the Person to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any applicable standard of conduct required by the TBCA has been met. Any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law, the Company Charter, the Company Bylaws or a written Contract between an Indemnified Party and the Company or one of its Subsidiaries, as the case may be, shall be made by independent special legal counsel selected by the Board of Directors of the Surviving Corporation or a committee thereof in the manner prescribed by Section 00-00-000 of the TBCA, the fees of which counsel shall be paid by the Surviving Corporation.
(b) An Indemnified Party shall notify the Surviving Corporation in writing promptly upon learning of any claim, action, suit, proceeding, investigation or other matter in respect of which such indemnification may be sought. The Surviving Corporation shall have the right, but not the obligation, to assume and control the defense of any act or omission covered under this Section 6.7 (each, a “Claim”) with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the applicable Indemnified Party; provided, however, that such Indemnified Party shall be permitted to participate in the defense of such Claim at his or her own expense; and provided, further, that if the Surviving Corporation assumes the defense then the Surviving Corporation shall use its reasonable best efforts to conduct a vigorous defense of such matter. Notwithstanding anything to the contrary in this Agreement, neither Parent nor the Surviving Corporation shall, and Parent shall cause the Surviving Corporation not to, settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.7 without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim, action, suit proceeding or investigation, and does not include an admission of fault or wrongdoing by any Indemnified Party, in which case, no such consent shall be required.
(c) Subject to the following sentence, the Company or the Surviving Corporation (or any successor), as the case may be, shall, and Parent shall cause the Company or the Surviving Corporation (or any successor), as the case may be, to purchase, at no expense to the beneficiaries, a six (6) year extended reporting period endorsement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability 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 of the Prior Agreement 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 first sentence of this Section 6.7(c), but subject to the second and last sentence of this Section 6.7(c), the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding any of the foregoing, in no event shall Parent or the Surviving Corporation be required to (or the Company be able to) expend for such policy an aggregate amount in excess of 300% of the annual premium currently payable by the Company, it being understood that if the premiums payable for such insurance coverage exceeds such amount, Parent and the Surviving Corporation shall be obligated to (or the Company may only) obtain a policy with the greatest coverage available for a cost equal to such amount.
(d) Following the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the provisions in the Company Charter and the Company Bylaws as of the date of the Prior Agreement providing for indemnification, advancement and reimbursement of expenses and exculpation of Indemnified Parties, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law Law, which provisions shall not be amended in a manner that would adversely affect the rights thereunder of the Indemnified Parties, except as required by applicable Law.
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or (ii) of this sentence so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.7.
(f) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.7(f) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation charter or bylaws.
(g) This Section 6.7 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent under this Section 6.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless (i) such termination or modification is required by applicable Law or (ii) the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.7, and entitled to enforce the covenants contained in this Section 6.7. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.7 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 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 6.7 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or the charter or bylaws of the Surviving Corporation or under any applicable Contracts, insurance policies or Laws and Parent shall, or and shall cause the Surviving Corporation (or its assignees) to, also advance fees honor and expenses (including reasonable attorneys' feesperform under all indemnification agreements entered into by the Company or any of its Subsidiaries that are listed in Section 6.7(f) as incurred to of the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Company Disclosure Schedule.
(dh) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (ai) thereunder From and after the Effective Time, DGI shall cause the Surviving Corporation to, to the fullest extent permitted by Law, including to the fullest extent authorized or permitted by any amendments to or replacements of individuals who the MBCA and the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors, indemnify and hold harmless and advance expenses for, 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 MICO or any fiduciaries under any Plan (each a “MICO 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 Effective Time were directorsTime, officers excluding the approval of this Agreement or employees the transactions this Agreement contemplates or arising out of or pertaining to the Companytransactions this Agreement contemplates, whether asserted or claimed prior to, at or after the Effective Time.
(bii) Parent From and after the Effective Time, DGI shall cause the Surviving Corporation to, to be maintained the fullest extent permitted by law, including to the fullest extent authorized or permitted by any amendments to or replacements to the MBCA and the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its directors and officers, indemnify and hold harmless and advance expenses for, provided the Person to whom the Surviving Corporation advances expenses, provides a reasonable and customary undertaking which shall not include the 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 MICO that are not also directors or officers of WBM or any fiduciaries under any Plan 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 the approval of this Agreement or the transactions this Agreement contemplates or arising out of or pertaining to the transactions this Agreement contemplates, whether asserted or claimed prior to, at or after the Effective Time.
(iii) The Surviving Corporation shall, and DGI shall cause the Surviving Corporation to, at no expense to the beneficiaries:
(A) continue to maintain in effect for six years from the Effective Time the current policies of the directors' ’ and officers' ’ liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing and fiduciary liability insurance having terms and conditions which are not materially no less advantageousfavorable to the MICO Indemnified Parties as MICO’s currently existing directors’ and officers’ liability insurance and fiduciary liability insurance (the “Current Insurance”) with respect to matters existing or events occurring at or prior to the Effective Time to Time, including the extent available; providedtransactions this Agreement contemplates. Notwithstanding the foregoing, however, that in no event shall Parent DGI or the Company Surviving Corporation be required to expend more than for any such policies contemplated by this Section 6(e)(iii) an annual premium amount per year equal to 200in excess of 175% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretoMICO for such insurance; and, provided, provided further that if the annual premiums of such insurance coverage exceed such amount, DGI or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(cB) For six years after The Organizational Documents of the Surviving Corporation shall include provisions for indemnification, advancement of expenses and exculpation of the MICO Indemnified Parties on terms and conditions that are substantially equivalent as those set forth in the Organizational Documents of MICO in effect on the date of this Agreement. Following the Effective Time, Parent agrees that it will or will the Surviving Corporation shall, and DGI shall cause the Surviving Corporation to indemnify to, maintain in effect the provisions in the MICO Organizational Documents providing for indemnification, advancement of expenses and hold harmless each present and former director and officer exculpation of the Company, determined as of the Effective Time (the "MICO Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted from time to time under applicable law Law, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by applicable Law that would enlarge the scope of the MICO Indemnified Parties’ indemnification rights thereunder.
(and Parent shall, C) If DGI or shall cause the Surviving Corporation toor any of their respective successors or assigns [a] consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or [b] transfers all or substantially all of its properties and assets to any Person, also advance fees then, and expenses (including reasonable attorneys' fees) as incurred in each such case, DGI shall cause proper provisions to be made prior to the fullest extent permitted under applicable law provided consummation of any transaction of the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined type described in clause [a] or clause [b] of this sentence so that such person is not entitled to indemnificationthe successors and assigns of DGI or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6(e).
(dD) Nothing in this Agreement This Section 6(e) is intended for the irrevocable benefit of, and to grant third party rights to, the MICO Indemnified Parties and shall be construed binding on all successors and assigns of DGI and the Surviving Corporation. Each MICO Indemnified Party shall be a third party beneficiary of this Section 6(e), and entitled 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 enforce the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for covenants contained in this Section 6.7 6(e). If any MICO Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6(e) that is not prior denied by DGI and/or the Surviving Corporation, and a court of competent jurisdiction determines that the MICO Indemnified Party is entitled to such indemnification, then DGI or the Surviving Corporation shall pay such MICO Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred in substitution for connection with pursuing such claim against DGI and/or the Surviving Corporation. The rights of the MICO Indemnified Parties under this Section 6(e) shall be in addition to any rights such claims MICO Indemnified Parties may have under such policiesthe Organizational Documents of MICO, the Organizational Documents of the Surviving Corporation or under any applicable contracts, insurance policies or Laws.
Appears in 1 contract
Samples: Merger Agreement (Donegal Group Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder The Restated Certificate of individuals who at the Effective Time were directors, officers or employees Incorporation of the Company.
(b) Parent Surviving Corporation shall cause contain the provisions with respect to indemnification that are set forth in the Restated Certificate of Incorporation of the Company on the date of this Agreement, which provisions shall not be maintained in effect amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the current policies rights thereunder of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of individuals who at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time were directors or officers of the Company in respect of actions or omissions occurring at or prior to the extent available; providedEffective Time, however, that in no event unless such modification shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amountlaw.
(cb) For six years From and after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation shall, to the fullest extent permitted under Delaware Law, indemnify and hold harmless harmless, each present and former director and officer of the Company, determined as Company and each subsidiary of the Effective Time Company and each such individual who served at the request of the Company or any subsidiary of the Company as a director, officer, trustee, partner, fiduciary, employee or agent of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES"), ) against any all costs or and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or damages, liabilities (collectively, "Costs") incurred and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation, investigation (whether arising before or after the Effective Time) whether civil, criminal, administrative or investigative, based on the fact that such person is or was a director or officer of the Company and arising out of or pertaining to matters relating to their duties any action or actions in their capacity as officers and directors and existing or omission occurring at or prior to before the Effective Time, whether asserted Time (including the transactions contemplated by this Agreement) (and shall pay any expenses in advance of the final disposition of such action or claimed prior to, at or after the Effective Time, proceeding to each Indemnified Party to the fullest extent permitted under applicable law (and Parent shallDelaware Law, or shall cause upon receipt from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person Indemnified Party to whom expenses are advanced provides a customary of any undertaking complying with applicable law to repay such advances if it is ultimately determined required under Delaware Law). In the event of any such claim, action, suit, proceeding or investigation, (i) the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received and (ii) the Surviving Corporation shall cooperate in the defense of any such matter; PROVIDED, HOWEVER, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and PROVIDED FURTHER that the Surviving Corporation shall not be obligated pursuant to this Section 7.05(b) to pay the fees and expenses of more than one counsel other than local counsel for all Indemnified Parties in any single action unless a conflict of interest shall be caused thereby.
(c) Ford shall provide or maintain in effect for six years from the Effective Time directors' and officers' liability insurance covering those persons who are covered by the directors' and officers' liability insurance policy currently provided for directors and officers of the Company on terms comparable to such person is not entitled existing insurance coverage; PROVIDED, HOWEVER, that Ford has no obligation to indemnification)provide or maintain levels of coverage in excess of those to which directors and officers of Ford are at the time entitled.
(d) Nothing If 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 such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation, as the case may be, shall assume the obligations of the Surviving Corporation set forth in this Agreement is intended to, Section 7.05.
(e) The rights of each Indemnified Party under this Section 7.05 shall be construed in addition to or shall release, waive or impair any rights to directors' and officers' insurance claims such person may have under any policy that is the certificate of incorporation or has been in existence with respect to bylaws of the Company or any of its officerssubsidiaries, directors under Delaware Law or employeesany other applicable laws or under any agreement of any Indemnified Party with the Company or any of its subsidiaries. These rights shall survive consummation of the Merger and are intended to benefit, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policiesshall be enforceable by, each Indemnified Party.
Appears in 1 contract
Samples: Merger Agreement (Hertz Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directorsClosing, officers or employees of the Company.
(b) Parent Buyer shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shalladvance expenses, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a reasonable and customary undertaking complying with applicable law (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), to the fullest extent permitted by Legal Requirements, the present and former directors and officers of the Company (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. Notwithstanding anything contrary in this Agreement (including the foregoing and Section 11.11(b)) and anything in the Company’s governing documents, neither the Buyer nor the Company shall indemnify Xxxx Xxxxxx or any other Company Indemnified Parties in connection with any illegal conduct or activity of the nature giving rise to Settlement and CIA Agreements that (A) occurred during any period not covered by the Settlement and CIA Agreements, (B) are asserted by a state Medicaid program, private insurer or consumer or (C) are not otherwise released pursuant to the terms of the Settlement Agreement. For purposes of clarity, nothing in this Agreement shall prohibit the Company Indemnified Parties from making an indemnification claim under the Company’s directors’ and officers’ liability insurance policies in effect prior to the Closing.
(b) The governing documents of the Company shall include provisions for indemnification, advancement of expenses and exculpation of the Company Indemnified Parties at least as favorable as those as set forth in the governing documents of the Company in effect on the date of this Agreement. Following the Closing, the Buyer shall cause the Company to maintain in effect the provisions in its governing documents providing for indemnification, advancement of expenses and exculpation of Company Indemnified Parties, as applicable, with respect to the facts or circumstances occurring at or prior to the Closing, to the fullest extent permitted from time to time under applicable Legal Requirements, which provisions shall not be amended except as required by applicable Legal Requirements or except to make changes permitted by applicable Legal Requirements that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.
(c) If Buyer or the Company or any of their respective successors or assigns (i) consolidates with or merges into any other party and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any party, then, and in each such case, Buyer shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or clause (ii) of this sentence so that the successors and assigns of Buyer or the Company, as the case may be, shall assume all of the obligations set forth in this Section 11.11.
(d) Nothing This Section 11.11 is intended for the irrevocable benefit of, and to grant third-party rights to, the Company Indemnified Parties and shall be binding on all successors and assigns of Buyer and the Company. Each Company Indemnified Party shall be a third-party beneficiary of this Section 11.11, and entitled to enforce the covenants contained in this Agreement Section 11.11. If any Company Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 11.11 that is intended todenied by Buyer and/or the Company, and a court of competent jurisdiction determines that the Company Indemnified Party is entitled to such indemnification, then Buyer or the Company shall pay such Company Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Buyer and/or the Company, provided that such Company Indemnified Party is the prevailing party in such claim. The rights of the Company Indemnified Parties under this Section 11.11 shall be construed in addition to or shall release, waive or impair any rights to directors' and officers' insurance claims such Company Indemnified Parties may have under any policy that is or has been in existence with respect to the governing documents of the Company or under any of its officersapplicable contracts, directors insurance policies or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policiesLegal Requirements.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (DJO Finance LLC)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at Without limiting any additional rights that any employee may have under any indemnification agreement, employment agreement or the Effective Time were directorsCompany Award Plans, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time occurs, to the full extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid permitted by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective TimeLaw, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its Subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including attorneys’ fees and disbursements (collectively, "“Costs") ”), incurred in connection with any threatened, pending or completed claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (each, a “Proceeding”) to which an Indemnified Party is a party or with respect to which an Indemnified Party is otherwise involved (including as a witness), arising out of or pertaining to matters relating to their duties the fact that the Indemnified Party is or actions in their capacity as officers and directors and existing was an officer, director, employee, fiduciary or occurring at agent of the Company or prior to any of its Subsidiaries on or before the Effective TimeTime (including any Proceeding arising out of or pertaining to this Agreement and the transactions and actions contemplated hereby), whether such Proceeding is commenced, or any claim or matter therein is asserted or claimed claimed, prior to, at or after the Effective Time, . In the event of any such Proceeding (x) each Indemnified Party will be entitled to the fullest extent permitted under applicable law (and advancement from Parent shall, or shall cause the Surviving Corporation toof fees, also advance fees costs and expenses (including reasonable attorneys' feesattorney’s fees and disbursements) as incurred in connection with and prior to the fullest extent permitted under applicable law final disposition of such Proceedings, such fees, costs and expenses (including reasonable attorney’s fees and disbursements) to be advanced within twenty business days of receipt by Parent from the Indemnified Party of a request therefor; provided the that any person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, if and only to the extent required by DGCL or the Company’s Certificate of Incorporation or By-Laws, to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
, (dy) Nothing neither Parent nor 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 (which term for purposes of this Agreement is intended toclause (y) only shall include only those persons who are officers, shall be construed to directors 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 employees of the Company or any of its officersSubsidiaries as of the date of this Agreement) hereunder, directors unless such settlement, compromise or employeesconsent includes an unconditional release of such Indemnified Party from all liability arising out of such action, it being understood suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and agreed that (z) the indemnification provided for Surviving Corporation shall cooperate in this Section 6.7 is not prior to or in substitution for the defense of any such claims under such policiesmatter.
Appears in 1 contract
Samples: Merger Agreement (Williams Scotsman International Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will shall, or will shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining investigative (including with respect to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law law. In the event of any such claim, action, suit, proceeding or investigation, (and x) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten business days of receipt by Parent from the fullest extent permitted under applicable law Indemnified Party of a request therefor; provided the that any person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, if and only to the extent required by FBCA or the Company’s Articles of Incorporation or Bylaws, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) neither Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (z) the Surviving Corporation shall cooperate in the defense of any such matter.
(db) Nothing in this Agreement is intended to, The articles of incorporation and bylaws of the Surviving Corporation 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 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 Articles of Incorporation and Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Parent shall maintain, or shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, for a period of not less than six years after the Effective Time for the persons who, as of the date of this Agreement, are covered by the Company’s directors’ and officers’ liability insurance policies, directors’ and officers’ liability insurance policies that provide coverage for events occurring at or prior to the Effective Time (the “D&O Insurance”) that are no less favorable in both amount and terms and conditions of coverage than the existing policies of the Company (true and complete copies of which have previously been made available to Parent) or, if substantially equivalent insurance coverage is unavailable, the best available coverage, in either case from insurance carriers with financial strength ratings equal to or greater than the financial strength ratings of the Company’s existing directors’ and officers’ liability insurance carriers; provided, however, that, in lieu of the foregoing, the Surviving Corporation may purchase a six-year “tail” coverage that is no less favorable in both amount and terms and conditions of coverage than the existing policies of the Company from insurance carriers with financial strength ratings equal to or greater than the financial strength ratings of the Company’s existing directors’ and officers’ liability insurance carriers; provided further that in no event shall Parent or Surviving Corporation be required to pay aggregate premiums for insurance under this Section 6.7(c) in excess of 300% of the amount of the aggregate premiums paid by the Company in respect of such coverage for its most recently completed fiscal year; provided, further, that if the aggregate premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall be obligated to obtain policies with the greatest coverage available for a cost not exceeding such amount. Parent agrees to honor and perform under, and to cause the Surviving Corporation’s to honor and perform under, all indemnification agreements entered into by the Company or any of its officerssubsidiaries.
(d) Notwithstanding anything herein to the contrary, directors if any claim, action, suit, proceeding or employeesinvestigation (whether arising before, it being understood at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and agreed that shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in Section 6.6 and this Section 6.7 is 6.7. In addition, the Surviving Corporation shall not prior distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to or in substitution for any such claims render the Surviving Corporation unable to satisfy its obligations under such policiesthis Section 6.7.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Without limiting any additional rights that any director, officer, trustee, or fiduciary under or with respect to any employee benefit plan (within the meaning of individuals Section 3(3) of ERISA) may have under any employment or indemnification agreement or under the Company’s certificate of incorporation, its bylaws or this Agreement or, if applicable, similar Organizational Documents or agreements of any of the Company’s Subsidiaries, from and after the Effective Time, Parent, the Company and Surviving Corporation (the “Indemnitors”) shall: (i) indemnify and hold harmless each Person who is at the date hereof or during the period from the date hereof through the Closing Date serving as a director, officer or trustee, or as a fiduciary under, or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA), of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”) to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, in connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, any Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security. The indemnification and advancement obligations of the Indemnitors pursuant to this Section 6.16(a) shall extend to acts or omissions occurring at or before the Effective Time were directors, officers and any Claim relating thereto (including with respect to any acts or employees omissions occurring in connection with the approval of this Agreement and the consummation of the CompanyMerger and the other transactions contemplated by this Agreement, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall continue as to a Person who continues to be or who has ceased to be a director, officer or trustee of the Company or any of its Subsidiaries, or fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA), of the Company or any of its Subsidiaries after the date hereof and shall inure to the benefit of such Person’s heirs, executors and personal and legal representatives. As used in this Section 6.16(a), the term “Expenses” means reasonable attorneys’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Claim for which indemnification is authorized pursuant to this Section 6.16(a), including any action relating to a claim for indemnification or advancement brought by an Indemnified Party. Neither Parent nor Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim in respect of which indemnification has been or could be sought by such Indemnified Party hereunder unless such settlement, compromise or judgment includes an unconditional release of such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents thereto.
(b) Without limiting the foregoing, Parent and Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers, trustees, employees, agents or fiduciaries of the Company or any of its Subsidiaries as provided in the Company’s certificate of incorporation or its bylaws (or, as applicable, the charter, bylaws, partnership agreement, limited liability company agreement or other Organizational Documents of any of the Company’s Subsidiaries) and indemnification agreements of the Company or any of its Subsidiaries shall cause be assumed by Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms.
(c) For a period of six (6) years from the Effective Time, the Organizational Documents of Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Company’s certificate of Incorporation and bylaws, which provisions shall not be maintained in effect amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of Persons who, at or prior to the Effective Time, were directors, officers, trustees, employees, agents, or fiduciaries of the Company or any of its Subsidiaries or with respect to any employee benefit plans (within the meaning of Section 3(3) of ERISA), unless such modification shall be required by law and then only to the minimum extent required by law.
(d) Surviving Corporation shall maintain for a period of at least six (6) years the current policies of the directors' ’ and officers' ’ liability insurance maintained by the Company or any of its Subsidiaries with respect to Claims arising from facts or events that occurred on or before the Effective Time, including, without limitation, in respect of the Merger and the other transactions contemplated by this Agreement; provided, that (provided i) that Parent Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are are, in the aggregate, no less advantageous to the insured (provided, that such substitution shall not materially less advantageous) result in gaps or lapses of coverage with respect to matters or events occurring prior to before the Effective Time to the extent available; provided, however, that Time) and (ii) in no event shall Parent or the Company Surviving Corporation be required to expend pursuant to this Section 6.16(d) more than an amount per year of coverage equal to 200% three hundred fifty percent (350%) of the current annual premiums paid by the Company or its Subsidiaries for such insurance. In the event that, but for the proviso to the immediately preceding sentence, Surviving Corporation would be required to expend more than three hundred fifty percent (which amounts under 350%) of the current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums paid by the Company or its Subsidiaries, Surviving Corporation shall obtain the maximum amount of such insurance coverage exceed such amountobtainable by payment of annual premiums equal to three hundred fifty percent (350%) of the current annual premiums paid by the Company or its Subsidiaries. Parent shall, the and shall cause Surviving Corporation shall be obligated or its successors or assigns to, maintain such policies in full force and effect, and continue to obtain a policy with the greatest coverage available for a cost not exceeding such amounthonor all obligations thereunder.
(ce) For six years after If Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges with or into any other Person and shall not be the Effective Timecontinuing or surviving corporation, limited liability company, partnership or other entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Surviving Corporation assume the obligations set forth in this Section 6.16.
(f) Parent agrees that it will or will shall cause the Surviving Corporation to indemnify perform all of the obligations of Surviving Corporation under this Section 6.16, and hold harmless each present the parties acknowledge and former director agree that Parent guarantees the payment and officer performance of Surviving Corporation’s obligations pursuant to this Section 6.16.
(g) This Section 6.16 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of the Company, determined as Parent and Surviving Corporation. Each of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or Parties shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not be entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to enforce the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for covenants contained in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.16.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (ai) thereunder From and after the Effective Date, DGI shall cause the Surviving Corporation to, to the fullest extent permitted by Law, including to the fullest extent authorized or permitted by any amendments to or replacements of individuals who the MBCA and the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors, indemnify and hold harmless and advance expenses for, 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 MICO or any fiduciaries under any Plan (each a “MICO 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 Effective Time were directorsDate, officers excluding the approval of this Agreement or employees the transactions this Agreement contemplates or arising out of or pertaining to the Companytransactions this Agreement contemplates, whether asserted or claimed prior to, at or after the Effective Date.
(bii) Parent From and after the Effective Date, DGI shall cause the Surviving Corporation to, to be maintained the fullest extent permitted by law, including to the fullest extent authorized or permitted by any amendments to or replacements to the MBCA and the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its directors and officers, indemnify and hold harmless and advance expenses for, provided the Person to whom the Surviving Corporation advances expenses, provides a reasonable and customary undertaking which shall not include the 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 MICO that are not also directors or officers of WBM or any fiduciaries under any Plan against any and all costs or expenses, including reasonable attorneys’ fees and expenses, judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in effect for six years from 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 the approval of this Agreement or the transactions this Agreement contemplates or arising out of or pertaining to the transactions this Agreement contemplates, whether asserted or claimed prior to, at or after the Effective Time Date.
(iii) The Surviving Corporation shall, and DGI shall cause the current policies of Surviving Corporation to, at no expense to the beneficiaries:
(A) Upon 30 days’ notice from WBM that WBM is no longer providing directors' ’ and officers' ’ liability insurance maintained by and fiduciary insurance to the Company MICO Indemnified Parties, the Surviving Corporation shall provide the MICO Indemnified Parties with directors’ and officers’ liability and fiduciary insurance no less favorable to the MICO Indemnified Parties as MICO’s currently existing directors’ and officers’ liability and fiduciary insurance (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous“Current Insurance”) with respect to matters existing or events occurring at or prior to the Effective Time to Date, including the extent available; providedtransactions this Agreement contemplates. Notwithstanding the foregoing, however, that in no event shall Parent DGI or the Company Surviving Corporation be required to expend more than for any such policies contemplated by this Section 6(e)(iii) an annual premium amount per year equal to 200in excess of 175% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretoMICO for such insurance; and, provided, provided further that if the annual premiums of such insurance coverage exceed such amount, DGI or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(cB) For six years after The Organizational Documents of the Surviving Corporation shall include provisions for indemnification, advancement of expenses and exculpation of the MICO Indemnified Parties on terms and conditions that are substantially equivalent as those set forth in the Organizational Documents of MICO in effect on the date of this Agreement. Following the Effective TimeDate, Parent agrees that it will or will the Surviving Corporation shall, and DGI shall cause the Surviving Corporation to indemnify to, maintain in effect the provisions in the MICO Organizational Documents providing for indemnification, advancement of expenses and hold harmless each present and former director and officer exculpation of the Company, determined as of the Effective Time (the "MICO Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective TimeDate, to the fullest extent permitted from time to time under applicable law Law, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by applicable Law that would enlarge the scope of the MICO Indemnified Parties’ indemnification rights thereunder.
(and Parent shall, C) If DGI or shall cause the Surviving Corporation toor any of their respective successors or assigns [a] consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or [b] transfers all or substantially all of its properties and assets to any Person, also advance fees then, and expenses (including reasonable attorneys' fees) as incurred in each such case, DGI shall cause proper provisions to be made prior to the fullest extent permitted under applicable law provided consummation of any transaction of the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined type described in clause [a] or clause [b] of this sentence so that such person is not entitled to indemnificationthe successors and assigns of DGI or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6(e).
(dD) Nothing in this Agreement This Section 6(e) is intended for the irrevocable benefit of, and to grant third party rights to, the MICO Indemnified Parties and shall be construed binding on all successors and assigns of DGI and the Surviving Corporation. Each MICO Indemnified Party shall be a third party beneficiary of this Section 6(e), and entitled 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 enforce the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for covenants contained in this Section 6.7 6(e). If any MICO Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6(e) that is not prior denied by DGI and/or the Surviving Corporation, and a court of competent jurisdiction determines that the MICO Indemnified Party is entitled to such indemnification, then DGI or the Surviving Corporation shall pay such MICO Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred in substitution for connection with pursuing such claim against DGI and/or the Surviving Corporation. The rights of the MICO Indemnified Parties under this Section 6(e) shall be in addition to any rights such claims MICO Indemnified Parties may have under such policiesthe Organizational Documents of MICO, the Organizational Documents of the Surviving Corporation or under any applicable contracts, insurance policies or Laws.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' 7.9.1. From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause Bridge Bancorp, as the Surviving Corporation to Corporation, shall indemnify and hold harmless and shall advance expenses as incurred, in each case to the extent (subject to applicable law) such Persons are indemnified as of the date of this Agreement by DCB pursuant to the DCB Certificate of Incorporation, the DCB Bylaws, the governing or organizational documents of any Subsidiary of DCB and any indemnification agreements in existence as of the date hereof, each present and former director director, officer or employee of DCB and officer of its Subsidiaries (collectively, the Company, determined as of the Effective Time (the "“DCB Indemnified Parties"), ”) against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising out of the fact that such Person is or was a director, officer or employee of DCB or any of its Subsidiaries and pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior toincluding the transactions contemplated by this Agreement; provided, at or after that in the Effective Timecase of advancement of expenses, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person any DCB Indemnified Party to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person DCB Indemnified Party is not entitled to indemnification).
7.9.2. For a period of six (d6) Nothing years after the Effective Time, the Surviving Corporation shall cause to be maintained in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to effect the current policies of directors' ’ and officers' ’ liability insurance claims under any policy maintained by DCB (provided, that is or has been in existence the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims arising from facts or events which occurred at or before the Company Effective Time. In lieu of the foregoing, Bridge Bancorp or DCB, in consultation with, but only upon the consent of Bridge Bancorp, may (and at the request of Bridge Bancorp, DCB shall use its reasonable best efforts to) obtain at or prior to the Effective Time a six (6)-year “tail” policy under DCB’s existing directors’ and officers’ insurance policy providing equivalent coverage to that described in the preceding sentence.
7.9.3. The obligations of Bridge Bancorp as the Surviving Corporation under this Section 7.9 shall not be terminated or modified after the Effective Time in a manner so as to adversely affect any DCB Indemnified Party without the prior written consent of the affected DCB Indemnified Party.
7.9.4. The provisions of this Section 7.9 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, each DCB Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its officerssuccessors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving entity of such consolidation or merger, directors or employees(ii) transfers all or substantially all of its assets or deposits to any other Person or engages in any similar transaction, it being understood and agreed then in each such case, the Surviving Corporation will cause proper provision to be made so that the indemnification provided for successors and assigns of the Surviving Corporation will expressly assume the obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies7.9.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, each of Parent agrees that it will or will and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to to, indemnify and hold harmless harmless, to the fullest extent permitted under applicable law (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law; provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of the CompanyCompany and the Company Subsidiaries (collectively, determined as of the Effective Time (the "“Indemnified Parties"), ”) against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, "“Costs"”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, including the transactions contemplated by this Agreement, whether asserted or claimed prior to, at or after the Effective Time, .
(b) Prior to the fullest extent permitted under applicable law Effective Time, the Company shall, and if the Company is unable to Parent shall cause the Surviving Corporation as of the Effective Time to, fully pay the premium for “tail” insurance policies for the extension of (i) the Side A coverage part (directors’ and officers’ liability) of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time from an insurance carrier rated at least “A” by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable as the Company’s existing policies with respect to any matter claimed against a director or officer of the Company or any of the Company Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby). If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall, or shall cause the Surviving Corporation to, also advance fees continue to maintain in effect for a period of at least six years from and expenses after the Effective Time the D&O Insurance in place as of the date hereof terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for any such policies contemplated by this Section 6.10 an annual premium (including reasonable attorneys' feesmeasured for “tail” purposes by reference to 1/6th the premium paid therefor) as incurred amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and, provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. Without limiting the forgoing, the parties agree that the Company shall exercise its option to purchase a one year “tail” insurance policy under its existing D&O Insurance policy.
(c) If the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying Surviving Corporation or any of its successors or assigns (i) consolidates with applicable law to repay such advances if it is ultimately determined that such person or merges into any other Person and is not entitled the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to indemnification)any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations set forth in this Section 6.10.
(d) Nothing in The provisions of this Agreement is Section 6.10 are intended toto be for the benefit of, and shall be construed enforceable by, each of the Indemnified Parties. The rights of the Indemnified Parties under this Section 6.10 shall be in addition to or shall release, waive or impair any rights to directors' and officers' insurance claims such Indemnified Parties may have under any policy that is the articles of incorporation or has been in existence with respect to code of regulations of the Company or any of its officersthe Company Subsidiaries, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to under any applicable contracts or in substitution for any such claims under such policiesLaws.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent the Surviving Corporation agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, determined as of to the Effective Time extent acting in such capacity) (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities (collectively, "Costs") awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and existing connection with the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or any acts or omissions occurring at or alleged to occur prior to the Effective TimeTime in such Person’s capacity as a director or officer of the Company, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Delaware Law and its Certificate of Incorporation and Bylaws in effect on the date of this Agreement to indemnify such Person (and the Surviving Corporation shall (and Parent shall, or shall cause the Surviving Corporation to, also ) advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in successfully enforcing such Person’s rights under this Section 7.8, regardless of whether indemnification with respect to or advancement of such expenses is authorized under the fullest extent permitted under applicable law Certificate of Incorporation, the Bylaws or the certificate of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification pursuant to this Section 7.8). 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 has been sought by such Indemnified Party hereunder, unless such settlement, compromise or consent relates only to monetary damages for which the Surviving Corporation is entirely responsible and 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) and (y) the Surviving Corporation shall reasonably cooperate with the Indemnified Party 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 7.8, (i) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, (ii) subject to the retention of additional counsel if necessary as a result of any conflict of interest, the applicable Indemnified Parties shall be entitled to retain a single firm to serve as their own counsel for any such Proceeding, whether or not the Surviving Corporation shall elect to control the defense of such Proceeding, (iii) the Surviving Corporation shall pay all reasonable fees and expenses of any such counsel retained by one or more Indemnified Parties promptly after statements therefor are received, if the Surviving Corporation does not elect to control the defense of any such Proceeding, and (iv) no Indemnified Party shall be liable to Parent or the Surviving Corporation for any settlement effected without his or her prior express written consent; provided that for purposes of clauses (ii) and (iii) the Indemnified Party on behalf of whom fees and expenses are paid provides an undertaking to repay such fees and expenses if it is ultimately determined that such Person is not entitled to indemnification pursuant to this Section 7.8).
(b) Any Indemnified Party wishing to claim indemnification under this Section 7.8, upon learning of any such Proceeding, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying Party.
(c) For a period of six years after the Effective Time, or if any applicable statute of limitations is extended to a later date, for a period ending on such later date, the provisions in the Surviving Corporation’s certificate of incorporation and bylaws with respect to indemnification), advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Certificate of Incorporation and Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time, or if any applicable statute of limitations is extended to a later date, for a period ending on such later date, in any manner that would adversely affect the rights thereunder of any such individuals.
(d) Parent shall maintain, or shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in effect for at least six years from the Effective Time the current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof) with respect to matters existing or occurring at or prior to the Effective Time. At Parent’s option, in lieu of maintaining such current policies, the Company shall purchase from insurance carriers with comparable credit ratings, no later than the Effective Time, a six-year prepaid “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous in the aggregate to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time, including the transactions contemplated hereby; 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 300% 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. In the event the Company elects to purchase such a “tail policy”, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail policy” in full force and effect and continue to honor their respective obligations thereunder for six years from the Effective Time. Parent agrees to cause the Surviving Corporation to honor and perform under, all indemnification agreements that entered into by the Company or any of its subsidiaries with any Indemnified Party and that copies of which have been provided to Parent prior to the date hereof.
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 7.8.
(f) The provisions of this Section 7.8 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.
(g) The rights of the Indemnified Parties under this Section 7.8 shall be in addition to any 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, or under any applicable Contracts or Laws. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 7.8 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation (as the case may be) to, to indemnify the same extent that the Company is required to indemnify, defend and hold harmless each (and advance expenses to) the applicable Indemnified Party under applicable Law and the Company Charter and Company Bylaws or the organizational documents of the applicable Subsidiary of the Company as of the date hereof, indemnify, defend and hold harmless (and advance expenses from time to time as incurred, provided the Person to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA or other applicable Law and provides statements and reasonable documentation therefor) the present and former director directors and officer officers of the Company or any Subsidiary of the Company and any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan or any Subsidiary of the Company, determined as ) at the request of the Effective Time Company and the members of JAX LLC that are entitled to indemnification under the LLC Agreement (the "each an “Indemnified Parties"), Party”) from and against any and all actual, documented costs or expenses (including reasonable attorneys' ’ fees, expenses and disbursements), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any claimactual or threatened Proceeding, actionarising out of, suitrelating to, proceeding or investigationin connection with, whether civilany circumstances, criminaldevelopments or matters in existence, administrative or investigativeacts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of this Agreement and the Merger or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeMerger, whether asserted or claimed prior to, at or after the Effective Time; provided, that the Person to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any applicable standard of conduct required by the TBCA or other applicable Law has been met.
(b) An Indemnified Party shall notify the Surviving Corporation in writing promptly upon learning of any Proceeding or other matter in respect of which such indemnification may be sought. The Surviving Corporation shall have the right, but not the obligation, to assume and control the fullest extent defense of any act or omission covered under this Section 5.7 (each, a “Claim”) with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the applicable Indemnified Party; provided, however, that (i) such Indemnified Party shall be permitted under applicable law to participate in the defense of such Claim at his or her own expense; and (ii) if the Surviving Corporation assumes the defense, then the Surviving Corporation shall use its reasonable best efforts to conduct a vigorous defense of such matter; provided, further, that in respect of any matter for which the Surviving Corporation has assumed the defense of such Claim, notwithstanding anything to the contrary in this Agreement, neither Parent nor the Surviving Corporation shall, and Parent shall cause the Surviving Corporation not to (without the prior written consent of the applicable Indemnified Party, not to be unreasonably withheld, conditioned or delayed), settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to such Claim for which indemnification may be sought by an Indemnified Party pursuant to this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such Claim, and does not include an admission of fault or wrongdoing by any Indemnified Party.
(c) Subject to the following sentence, the Company may, and if the Company does not the Parent shall cause the Surviving Corporation (or any successor) to, purchase, at no expense to the beneficiaries, a six (6) year extended reporting period endorsement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability 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 of this Agreement 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 any of the foregoing, in no event shall Parent or the Surviving Corporation be required to (or the Company be permitted to) expend for such policy an aggregate amount in excess of 300% of the annual renewal premium amount applicable to the Company’s directors’ and officers’ liability insurance and fiduciary liability insurance at the time the Reporting Tail Endorsement is purchased, it being understood that if the premiums payable for such insurance coverage exceeds such amount, Parent and the Surviving Corporation shall be obligated to (or the Company may only) obtain a policy with the greatest coverage available for a cost equal to such amount.
(d) Following the Effective Time, the Surviving Corporation shall, or and Parent shall cause the Surviving Corporation to, also advance fees honor the provisions in the Company Charter and the Company Bylaws as of the date of this Agreement providing for indemnification, advancement and reimbursement of expenses (including reasonable attorneys' fees) and exculpation of Indemnified Parties, as incurred applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Law.
(de) If Parent or the Surviving Corporation or any of their respective successors or assigns or Subsidiaries (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or (ii) of this sentence so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.7.
(f) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 5.7(f) of the Company Disclosure Schedule between the Company or any Subsidiary and any of the Indemnified Parties.
(g) This Section 5.7 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent under this Section 5.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless (i) such termination or modification is required by applicable Law or (ii) the affected Indemnified Party shall have consented in advance in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 5.7, and entitled to enforce the covenants contained in this Section 5.7. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.7 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 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 5.7 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents or agreements) of any of the Company’s Subsidiaries or the charter or bylaws of the Surviving Corporation or under any applicable Contracts, insurance policies or Laws and Parent shall, and shall cause the Surviving Corporation (or its assignees) to, honor and perform under all indemnification agreements entered into by the Company or any of its Subsidiaries that are listed in Section 5.7(f) of the Company Disclosure Schedule.
(h) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 5.7 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) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after following the Effective Time, Parent agrees that it will or will cause and the Surviving Corporation to shall, jointly and severally, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company and its subsidiaries (the "Indemnified Parties"), against any all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs or expenses (and expenses, including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities 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 or pertaining to matters relating to their duties or actions taken by them in their capacity as officers and or directors and existing or occurring at or prior to the Effective TimeTime (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 (and the DGCL. Each Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten business days of receipt by Parent from the fullest extent permitted under applicable law Indemnified Party of a request therefor; provided the that any person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company's Certificate of Incorporation and By-laws.
(c) The Surviving Corporation shall maintain, at no expense to the beneficiaries, in effect for six years from the Effective Time the current directors' and officers' liability insurance policies maintained by the Company and the current fiduciary liability insurance policies maintained by the Company (provided that Parent or the Surviving Corporation may (i) substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof or (ii) arrange for "tail" coverage for such six-year period under the Company's current directors' and officers' liability insurance policies) with respect to matters existing or occurring at or prior to the Effective Time; provided, however, that during this period, the Surviving Corporation shall not be required to maintain any coverage in excess of the amount that can be obtained for the remainder of the period for an annual premium of 200% of the current annual premium paid by the Company for its existing coverage, the amount of which is set forth in Section 6.7(c) of the Company Disclosure Schedule.
(d) Nothing The obligations of Parent and the Surviving Corporation under this Section 6.7 shall not be terminated or modified by such parties in a manner so as to adversely affect any Indemnified Party to whom this Agreement is intended to, shall be construed to Section 6.7 applies without the consent of the affected Indemnified Party. If Parent 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 Surviving Corporation or any of its officersrespective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, directors corporation or employeesother entity, it being understood then, and agreed in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for in this Section 6.7 herein shall not be deemed exclusive of any other rights to which an Indemnified Party is not prior entitled, whether pursuant to Law, Contract or in substitution for any such claims under such policiesotherwise.
Appears in 1 contract
Samples: Merger Agreement (Ims Health Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain the same provisions with respect to indemnification, advancement and director 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 individuals persons who at any time prior to the Effective Time were directorsentitled to indemnification, officers advancement or employees exculpation under the Certificate of Incorporation or Bylaws of the CompanyCompany 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.
(b) After the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable Law and as required by any indemnification agreements of the Company (as each is in effect on the date hereof), indemnify and hold harmless, each present and former director or officer of the Company and 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 (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 herein shall make Parent, Merger Sub, the Company or the Surviving Corporation an insurer, a co-insurer or an excess insurer in respect of any insurance policies that may provide coverage for any of the foregoing, nor shall this Section 6.06 relieve the obligations of any insurer in respect thereto. Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) Parent and the Surviving Corporation shall advance or pay the reasonable fees and expenses of counsel selected by any Indemnified Party, which counsel shall be reasonably satisfactory to Parent and the Surviving Corporation, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and (ii) Parent and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed).
(c) For a period of six years after the Effective Time, Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance policies maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters claims arising from facts or events occurring that occurred prior to the Effective Time (including with respect to the extent availabletransactions contemplated by this Agreement); provided, however, that in no event shall Parent or the Company be required to expend pursuant to this Section 6.06(c) more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, provided further that if the annual premiums existing directors' and officers' liability insurance policy expires, is terminated or cancelled during such six-year period, Parent shall cause to be obtained as much directors' and officers' liability insurance as can be obtained for the remainder of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available period for a cost premium not exceeding such amount.
in excess (con an annualized basis) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of 200% of the Company, determined as of current annual premium paid by the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay Company for such advances if it is ultimately determined that such person is not entitled to indemnification)insurance.
(d) Nothing in this Agreement This Section 6.06 is intended toto be for the benefit of, and shall be construed to or enforceable by, the Indemnified Parties and their heirs and personal representatives and shall release, waive or impair any rights to directors' be binding on the Surviving Corporation and officers' insurance claims under any policy that is or has been in existence with respect to its successors and assigns. In the event the Company 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 in such consolidation or merger or (ii) transfers all or substantially all of its officersproperties and assets to any person, directors or employeesthen, it being understood and agreed in each case, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation, as the case may be, honor the indemnification provided for obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.06.
Appears in 1 contract
Samples: Merger Agreement (Freemarkets Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directors, officers or employees through the sixth (6th) anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from date on which the Effective Time the current policies occurs, each of the directors' Parent and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present (as of the Effective Time) and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, determined as of the Effective Time when acting in such capacity) (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities (collectively, "Costs") awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters of, relating to their duties or actions in their connection with the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or serving in such capacity as officers and directors and existing at the request thereof or any acts or omissions occurring at or alleged to occur prior to the Effective TimeTime in such person’s capacity as a director or officer of the Company or any of its subsidiaries or serving in such capacity at the request thereof, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Delaware Law and its Certificate of Incorporation and Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, also shall advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 6.10, regardless of whether indemnification with respect to or advancement of such expenses is authorized under the fullest extent permitted under applicable law Certificate of Incorporation, the Bylaws or the certificate of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification pursuant to this Section 6.10); provided further that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Delaware Law and the Company’s Certificate of Incorporation and Bylaws shall be made by independent counsel selected by the Surviving Corporation. 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, 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 shall have the right to control the defense thereof after the Effective Time, (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 promptly after statements therefor are received, 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.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.10, upon learning of any such Proceeding, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying Party.
(c) The provisions in the Surviving Corporation’s certificate of incorporation and bylaws with respect to indemnification), advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Certificate of Incorporation and Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(d) The Company shall purchase from insurance carriers with comparable credit ratings, no later than the Effective Time, a six-year prepaid “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous in the aggregate to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time, including the transactions contemplated hereby, and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance; 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 300% 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. In the event the Company elects to purchase such a “tail policy”, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail policy” in full force and effect for at least six years from the Effective Time and continue to honor their respective obligations thereunder. If the Company elects not to purchase such a “tail policy”, then Parent shall maintain, or shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in effect for at least six years from the Effective Time the current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof) with respect to matters existing or occurring at or prior to the Effective Time and from insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance; provided, however, that after the Effective Time, Parent and the Surviving Corporation shall not be required to pay in the aggregate for such coverage under each such policy more than 300% 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. Parent agrees to honor and perform under, and to cause the Surviving Corporation to honor and perform under, all indemnification agreements entered into by the Company or any of its subsidiaries with any Indemnified Party that are set forth in Section 6.10(d) of the Company Disclosure Letter.
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 6.10.
(f) The provisions of this Section 6.10 shall survive the Merger for a period of six (6) years 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.
(g) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the Certificate of Incorporation or Bylaws of the Company or the comparable governing instruments of any of its subsidiaries, or under any applicable Contracts or Laws. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its subsidiaries or its or their respective officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.10 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at After the Effective Time were directors, officers or employees through the sixth (6th) anniversary of the CompanyEffective Time, Parent and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each present (as of the Effective Time) or former officer, director or employee of the Company and its Subsidiaries (the “Indemnified Directors and/or Officers”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses (including attorneys’ fees and expenses) incurred in connection with any claim, action, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Director or Officer is or was an officer, director or employee of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law; provided, that no Indemnified Director or Officer may settle any such claim without the prior approval of Parent, unless such approval is unreasonably withheld or delayed. Each Indemnified Director and Officer will be entitled to advancement of expenses incurred in the defense of any claim, action, proceeding or investigation from Parent or the Surviving Corporation within ten (10) Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Director or Officer of a request �herefore; provided, that any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(b) Parent shall cause the Surviving Corporation to be maintained maintain in effect (i) in its certificate of incorporation and bylaws for a period of six (6) years from after the Effective Time Time, the current provisions regarding elimination of liability of directors and indemnification of, and advancement of expenses to, officers, directors and employees contained in the certificate of incorporation and bylaws of the Company and (ii) for a period of six (6) years after the Effective Time, the current policies of the directors' ’ and officers' ’ liability insurance and fiduciary liability insurance maintained by the Company (provided provided, that Parent the Surviving Corporation may substitute therefor �herefore policies of at least the same coverage and amounts containing terms and conditions which are not materially are, in the aggregate, no less advantageousadvantageous to the insured) with respect to matters claims arising from facts or events occurring prior to that occurred on or before the Effective Time to the extent availableTime; provided, however, that in no event shall Parent or the Company Surviving Corporation be required to expend more than in any one year an amount per year equal to 200in excess of 300% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, further 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.
(c) For six years after The Surviving Corporation shall honor and fulfill in all respects the 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.
(d) Notwithstanding any time limit herein to the contrary, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with if any claim, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior tobefore, at or after the Effective Time, ) is made against any Indemnified Director or Officer on or prior to the fullest extent permitted under applicable law sixth (and 6th) anniversary of the Effective Time, the provisions of this Section 6.6 (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 Parent shall, or shall cause the Surviving Corporation toor any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, also advance fees then, and expenses (including reasonable attorneys' fees) in each such case, proper provision shall be made so that the successors or assigns of Parent or the Surviving Corporation, as incurred the case may be, shall succeed to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)obligations set forth in this Section 6.6.
(df) Nothing in this Agreement This Section 6.6 shall survive the consummation of the Merger at the Effective Time, is intended toto benefit the Company, the Surviving Corporation, the Indemnified Directors and Officers and the Covered Persons, shall be construed to or binding on all successors and assigns of the Surviving Corporation and shall release, waive or impair any rights to directors' be enforceable by the Indemnified Directors and officers' insurance claims under any policy that is or has been in existence with respect to Officers and the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policiesCovered Persons.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SFBC International Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Parent and Purchaser will cause the Surviving Corporation’s certificate of individuals who at the Effective Time were incorporation and bylaws to contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation from liabilities of present and former directors, officers or and employees of the Company.
Company than are currently provided in the Company Organizational Documents, which provisions may not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals until the later of (bi) Parent shall cause to be maintained in effect for six years from the Effective Time and (ii) in the current policies of event that any Action is pending or asserted or any claim made during the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are period set forth on Schedule 6.7) to maintain in clause (i), until the disposition of any such Action or procure insurance coverage pursuant hereto; andclaim, providedunless such amendment, further that if the annual premiums of such insurance coverage exceed such amountmodification or repeal is required by applicable Law, in which case Parent will, and will cause the Surviving Corporation shall be obligated to, make such changes to obtain a policy with the greatest coverage available for a cost not exceeding such amountcertificate of incorporation and the bylaws as to have the least adverse effect on the rights of the individuals referenced in this Section 6.5.
(cb) For six years Without limiting any additional rights that any Person may have under any agreement or Company Plan, from and after the Effective Time, Parent agrees that it will or will cause and the Surviving Corporation to will, jointly and severally, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) or former director or officer of the Company (the "each, together with such Person’s heirs, executors, administrators or Affiliates, an “Indemnified Parties"Party”), against any costs and all obligations to pay a judgment, settlement or penalty and reasonable expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigationAction, whether civil, criminal, administrative administrative, arbitrative or investigative, and whether formal or informal, arising out of or pertaining to matters relating to their duties any action or actions omission, including any action or omission in their capacity as officers and directors and existing connection with the fact that the Indemnified Party is or occurring at was an officer, director, employee, Affiliate, fiduciary or prior to agent of the Effective TimeCompany, whether asserted or claimed prior to, at at, or after the Effective Time, to the fullest extent permitted under applicable law (Law. In the event of any such Action, Parent and Parent shall, or shall cause the Surviving Corporation towill advance to each Indemnified Party reasonable expenses incurred in the defense of the Action, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law ’ fees (provided the person that any Person to whom expenses are advanced provides a customary will have provided, to the extent required by the DGCL, an undertaking complying with applicable law to repay such advances if it is ultimately finally determined that such person Person is not entitled to indemnification).
(dc) Nothing Notwithstanding anything to the contrary in this Agreement is intended toAgreement, shall be construed the Company may purchase prior to the Effective Time, and if the Company does not purchase prior to the Effective Time, the Surviving Corporation will purchase at or shall releaseafter the Effective Time, waive or impair any rights to a tail policy under the current directors' ’ and officers' ’ liability insurance claims under any policy policies maintained at such time by the Company (a “D&O Tail Policy”), which D&O Tail Policy (i) will be effective for a period from the Effective Time through and including the date that is or has been in existence six years after the Effective Time with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective to such directors and officers as the coverage provided by such existing policies; provided, that, the annual premium for such tail policy may not exceed three hundred percent of the last annual premium paid prior to the Effective Time (the “Maximum Amount”). If the aggregate premium of such insurance policies exceed the Maximum Amount then the Company or may, and the Surviving Corporation will, purchase a D&O Tail Policy with the greatest amount of coverage as is available at a cost up to, but not exceeding, such Maximum Amount. Parent will cause such policy to be maintained in full force and effect for their full term and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) Without limiting any of its officersthe rights or obligations under this Section 6.5, directors or employeesfrom and after the Effective Time, it being understood the Surviving Corporation will keep in full force and agreed that effect, and will comply with the terms and conditions of, any agreement in effect as of the date of this Agreement between the Company and any Indemnified Party providing for the indemnification of such Indemnified Party and Parent hereby guarantees the obligations of the Surviving Corporation pursuant to such agreements.
(e) This Section 6.5 will survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Person or entity referred to in this Section 6.5. The indemnification and advancement provided for in this Section 6.7 6.5 is not prior exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, Contract or otherwise. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity resulting from such consolidation or merger or (ii) transfers all or a majority of its properties and assets to any Person, then, and in substitution for any each such claims under case, Parent will make proper provisions such policiesthat the successors and assigns of the Surviving Corporation assume the applicable obligations set forth in this Section 6.5.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at Without limiting any additional rights that any person may have under any indemnification agreement, employment agreement or Company Plan, from the Effective Time were directorsthrough the sixth anniversary of the date on which the Effective Time occurs, officers except as set forth on Section 6.7(a) of the Company Disclosure Schedule, to the full extent permitted by applicable law, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director or employee of the Company and its subsidiaries (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees a nd disbursements (collectively, “Costs”), incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (each, a “Proceeding”) to which an Indemnified Party is or becomes a party or with respect to which an Indemnified Party is or becomes otherwise involved (including as a witness), arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its subsidiaries (including any Proceeding arising out of or pertaining to this Agreement and the transactions and actions contemplated hereby), whether such Proceeding is commenced, or any claim or matter therein is asserted or claimed, prior to, at or after the Effective Time. Except as set forth on Section 6.7(a) of the Company Disclosure Schedule, in the event of any such Proceeding (x) each Indemnified Party will be entitled to advancement from Parent or the Surviving Corporation of fees, costs and expenses (including reasonable attorney’s fees and disbursements) incurred in connection with and prior to the final disposition of such Proceedings, such fees, costs and expenses (including reasonable attorney’s fees and disbursements) to be advanced within ten business days of receipt by Parent from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) 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 (which term for purposes of this clause (y) only shall include only those persons who are officers, directors or employees of the CompanyCompany or any of its subsidiaries as of the date of this Agreement) 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, and (z) the Surviving Corporation shall cooperate in the defense of any such matter.
(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 those set forth in Exhibit A and Exhibit B hereto, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Effective Time, the Company shall use its reasonable best efforts to purchase a six-year prepaid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby (the “Tail Policy”); provided, however, that if the cost of the Tail Policy exceeds 300% of the last annual premium paid by the Company prior to the date of this Agreement with respect to its current policies of directors’ and officers’ liability insurance, then (x) the Company shall consult with Parent prior to purchasing the Tail Policy and (y) without Parent’s prior written consent, the Company shall not purchase the Tail Policy prior to the date that is twenty days prior to the anticipated Closing Date. In the event that the Company is unable to purchase a Tail Policy as provided in the preceding sentence, Parent shall have the right, but not the obligation, to purchase, prior to the Effective Time, the Tail Policy. If neither Parent nor the Company has purchased a Tail Policy, Parent shall maintain, or shall cause the Surviving Corporation to be maintained maintain, at no expense to the beneficiaries, in effect for six years from the Effective Time the current policies of the directors' ’ and officers' ’ liability insurance maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageousadvantageous to any beneficiary thereof) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time and from insurance carriers with comparable credit ratings; provided, however, that after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement, but in such case shall purchase as much coverage as reasonably practicable for such amount. The Company represents that the last annual premium of the Company prior to the date hereof is as set forth in Section 6.7(c) of the Company Disclosure Schedule. Parent agrees to honor and perform under, and to cause the Surviving Corporation’s to honor and perform under, all indemnification agreements entered into by the Company or any of its subsidiaries prior to the date of this Agreement.
(d) Notwithstanding anything herein to the contrary, if an Indemnified Party is a party to or is otherwise involved (including as a witness) in any Proceeding (whether asserted or claimed prior toarising before, at or after the Effective Time, ) on or prior to the fullest extent permitted under applicable law sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such Proceeding.
(e) This covenant is intended to be for the benefit of, and Parent shallshall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The rights to indemnification and advancement and the other rights provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or shall cause otherwise.
(f) In the event that the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its officersproperties and assets to any person, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in Section 6.6 and this Section 6.7 is not prior to or in substitution for any such claims under such policies6.7.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth (6th) anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; providedoccurs, however, that in no event each of Holdco and Parent shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer and director of the Company and the Company Subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities (collectivelyincluding attorneys’ fees and disbursements, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that an Indemnified Party is or was an officer or director of the Company or any of the Company Subsidiaries or is or was serving at the request of the Company or any of the Company Subsidiaries as a director or officer of another corporation, partnership, joint venture, trust or other enterprise or non-profit entity, (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective TimeTime or (iii) enforcement of this Section 6.7(a) if such officer or director prevails with respect to such enforcement, in each case to the fullest extent permitted under applicable law law. In the event of any such claim, action, suit, proceeding or investigation or in enforcing this Section 6.7(a), (and Parent shallA) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or shall cause investigation from the Surviving Corporation to, also advance fees and expenses within ten (including reasonable attorneys' fees10) as incurred to Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Party of a request therefor; provided the that any person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, if and only to the extent then required by the NRS, to repay such advances if it is ultimately determined that such person is not entitled to such indemnification, (B) neither Holdco, Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
(b) The articles of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company Articles of Incorporation and Company Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, for a claims reporting or discovery period of at least six (6) years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall the Company or the Surviving Corporation expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six (6) year period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect Notwithstanding anything herein to the Company contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth (6th) anniversary of its officersthe Effective Time, directors the provisions and benefits of this Section 6.7 shall continue in full effect until the final disposition of such claim, action, suit, proceeding or employees, it being understood and agreed that the indemnification provided for investigation.
(e) The covenants contained in this Section 6.7 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not prior be the continuing or surviving corporation or entity of such consolidation, conversion or merger or (ii) transfers or conveys all or a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in substitution for any such claims under such policiesthis Section 6.7.
(g) This Section 6.7 shall not be amended in a manner adverse to the Indemnified Parties without the written consent of each of the Indemnified Parties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The certificate of incorporation of the Surviving Corporation shall contain the provisions with respect to indemnification set forth in the certificate of incorporation of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers officers, employees or employees agents of the Company, unless such modification is required by law.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the The Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior shall, to the Effective Time to fullest extent permitted under applicable law or under the extent available; providedCompany’s Certificate of Incorporation, howeverby-laws or any applicable indemnification agreements and regardless of whether the Merger becomes effective, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; indemnify, defend and hold harmless, and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, the Parent agrees that it will or will shall, and shall cause the Surviving Corporation Corporation, to indemnify the fullest extent permitted under applicable law, indemnify, defend and hold harmless harmless, each present and former director and director, officer or employee of the CompanyCompany or any of its subsidiaries (collectively, determined as of the Effective Time (the "“Indemnified Parties"), ”) against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages or damages, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to matters relating the transactions contemplated by this Agreement or (y) otherwise with respect to their duties any acts or actions in their capacity as officers and directors and existing or omissions occurring at or prior to the Effective Time. Any determination required to be made with respect to whether an Indemnified Party’s conduct complied with the standards set forth under Delaware law, whether asserted the Company’s Certificate of Incorporation, by-laws or claimed prior toindemnification agreements, at or after as the Effective Timecase may be, shall be made by independent counsel mutually acceptable to Parent and the fullest extent permitted under applicable law Indemnified Party.
(c) Parent shall and Parent shall, or shall cause the Surviving Corporation to, also advance fees to honor and expenses (including reasonable attorneys' fees) as incurred fulfill in all respects the obligations of the Company pursuant to indemnification agreements with the fullest extent permitted under applicable law provided Company’s directors and officers existing at or before the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Effective Time.
(d) Nothing At or prior to the Effective Time, Parent shall obtain a “tail” insurance policy that provides coverage for the six years following the Effective Time comparable to the coverage provided under the Company’s directors and officers insurance policy in this Agreement effect on the date hereof for the individuals who are directors and officers of the Company on the date hereof for events occurring prior to the Effective Time.
(e) This Section shall survive the consummation of the Merger at the Effective Time, is intended toto benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be construed to or binding on all successors and assigns of the Surviving Corporation and 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 be enforceable by the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policiesIndemnified Parties.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee, officers officer or employees of director may have under any employment agreement or Benefit Plan or under the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies ’s certificate of the directors' and officers' liability insurance maintained incorporation or by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; providedlaws, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company and the Company Subsidiaries (the "“Indemnified Parties"Directors and Officers”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including, 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 or pertaining to matters relating to their duties or actions taken by them in their capacity as officers and or directors and existing or occurring at or prior to the Effective TimeTime (including this Agreement and the transactions and actions contemplated hereby), or taken by them at the request of the Company or any Company Subsidiary, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (Law for a period of six years from the Effective Time. Each Indemnified Director and Parent shallOfficer will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or shall cause investigation from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided the person that any Person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, if and only to the extent required by the DGCL, 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), 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 or such Indemnified Director or Officer otherwise consents.
(b) The certificate of incorporation and by-laws 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 officers than are presently set forth in the Company’s certificate of incorporation and by-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Effective Time, the Company shall endeavor to (and if it unable to, Parent shall cause the Surviving Corporation to after the Effective Time) obtain and fully pay (up to a maximum cost of 300% of the current annual premium paid by the Company for its existing coverage in the aggregate) for “tail” insurance policies (providing only for the Side A coverage for Indemnified Directors and Officers where the existing policies also include coverage for the Company) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies (or as otherwise set forth in Section 6.8(c) of the Company Disclosure Letter) with respect to matters existing or occurring at or prior to the Effective Time. Parent shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by the Company or any Company Subsidiary set forth in Section 6.8(c) of the Company Disclosure Letter.
(d) Nothing Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (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 6.8 shall continue in this Agreement effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended toto be for the benefit of, and shall be construed to or enforceable by, each of the Indemnified Directors and Officers and their respective heirs and legal representatives. The indemnification provided for herein shall release, waive or impair not be deemed exclusive of any other rights to directors' and officers' insurance claims under any policy which an Indemnified Director or Officer is entitled, whether pursuant to Law, contract or otherwise.
(f) In the event that is or has been in existence with respect to the Company Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its officersproperties and assets as an entirety in one or a series of related transactions to any Person(s), directors then, and in each such case, proper provision shall be made so that such continuing or employeessurviving corporation or entity or such Persons(s), it being understood and agreed that as the indemnification provided for case may be, shall assume the obligations set forth in this Section 6.7 is 6.8; provided that the Surviving Corporation shall not prior be relieved from such obligation. In addition, the Surviving Corporation shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to or in substitution for any such claims render the Surviving Corporation unable to satisfy its obligations under such policiesthis Section 6.8.
Appears in 1 contract
Samples: Merger Agreement (Toys R Us Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who Parent and Merger Sub agree that all rights to exculpation and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time were (including any matters arising in connection with the Transactions or this Agreement), now existing in favor of the current or former directors, officers or employees employees, as the case may be, of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time its Subsidiaries (the "Indemnified Parties") as provided in the Company Articles, the Company Bylaws (or equivalent organizational documents of the Company or any of its Subsidiaries) or in any agreement (a "Company Indemnity Agreement"), each as in effect on the date of this Agreement, shall survive the Offer and the Merger and shall continue in full force and effect in accordance with their terms. The Company has made available to Parent true and complete copies of all Company Indemnity Agreements.
(b) Without limiting the provisions of Section 6.4(a), from and after the Effective Time and for a period of six (6) years thereafter, the Surviving Entity will (or Parent shall cause the Company or the Surviving Entity, as applicable, to): (i) indemnify, defend and hold harmless to the fullest extent permitted by applicable Law, each Indemnified Party from and against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages damages, penalties, liabilities and amounts paid in settlement (including, in each case, any interest or liabilities (collectively, "Costs"assessments thereon) incurred in connection with any claim, action, suit, proceeding or investigationAction, whether civil, criminal, administrative or investigative, arising to the extent such Action arises out of or pertaining to matters relating to their duties pertains to: (A) any action or actions omission or alleged action or omission in their such Indemnified Party's capacity as officers and directors and existing a director, officer or occurring at employee of the Company or any of its Subsidiaries prior to the Effective Time; or (B) the Merger, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law this Agreement and any other Transaction and (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and ii) provide advancement of expenses (including reasonable attorneys' fees) as of any Indemnified Party incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary in connection with any such Action upon receipt of an undertaking complying with applicable law by or on behalf of such Indemnified Party to repay such advances amount if it is shall ultimately be determined that such person Indemnified Party is not entitled to indemnification)be indemnified. Notwithstanding the foregoing, the Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(dc) Nothing in this Agreement is intended The Surviving Entity will (and Parent shall cause the Company or the Surviving Entity, as applicable, to) provide, shall be construed to or shall releasefor a period of not less than six (6) years after the Effective Time, waive or impair any rights to the Indemnified Parties who are insured under the Company's directors' and officers' insurance claims under any and indemnification policy with an insurance and indemnification policy (from either (i) the Company's existing insurance carrier or (ii) an insurance carrier that is reasonably satisfactory to the Company) that provides coverage for events occurring at or has been prior to the Effective Time (the "D&O Insurance") that is no less favorable than the existing policy of the Company; provided, that the cost of such D&O Insurance shall in existence with respect no event exceed three hundred percent (300%) of the annual premium paid as of the date hereof by the Company for such insurance (which amount is set forth in Section 6.4(c) of the Company Disclosure Schedule). Notwithstanding anything to the contrary in this Agreement, the Company may and at Parent's request shall, prior to the Effective Time, purchase a "tail" directors' and officers' insurance and indemnification policy, provided, that payment for each year of insurance coverage provided by such "tail" directors' and officers' insurance policy shall not exceed three hundred (300%) of the annual premium paid as of the date hereof by the Company. Any such "tail" directors' and officers' insurance and indemnification policy will satisfy the Surviving Entity's obligation under this Section 6.4(c) to provide D&O Insurance. In the event the cap on amounts to be paid for D&O Insurance, whether for a new policy or tail coverage, is reached, the most protective policy of D&O insurance that can be acquired for a premium equal to such cap shall be purchased.
(d) The Indemnified Parties to whom this Section 6.4 applies shall be third party beneficiaries of this Section 6.4. The provisions of this Section 6.4 are intended to be for the benefit of each Indemnified Party and his or her successors, heirs and Representatives.
(e) Notwithstanding anything herein to the contrary, this Section 6.4 shall survive the consummation of the Merger and shall be binding, jointly and severally, on all successors and assigns of the Company, the Surviving Entity and its Subsidiaries, and shall be enforceable by the Indemnified Parties and their successors, heirs or Representatives. In the event that the Company or the Surviving Entity or any of their respective successors or assigns 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 transfers or conveys all or a majority of its officersproperties and assets to any Person, directors then, and in each such case, to the extent necessary, proper provision shall be made so that such other Person or employees, it being understood the successors and agreed that assigns of Parent or the indemnification provided for Surviving Entity as the case may be shall succeed to its obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.4.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder In the event of individuals who at the Effective Time were directors, officers any threatened or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any actual claim, action, suit, proceeding or investigation, whether civil, criminalcriminal or administrative, administrative including any such claim, action, suit, proceeding or investigativeinvestigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of of, or pertaining in whole or in part to, any action or failure to matters relating to their duties or actions take action by any such Person in their such capacity as officers and directors and existing or occurring at or taken prior to the Effective TimeTime (including with respect to any action or failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other transactions contemplated hereby), whether asserted or claimed prior toParent and the Surviving Corporation (each, at or an “Indemnifying Party”) will, jointly and severally, from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted under or required by applicable law Law and required by the Company Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), when applicable, and any indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, legal and other expenses (including reimbursement for legal and other fees and expenses incurred in advance of the final disposition of any claim, action, suit, proceeding or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party in connection with such claim, action, suit, proceeding or investigation. Parent shall, or shall cause the Surviving Corporation to, also promptly advance fees and all out-of-pocket expenses of each Indemnified Party in connection with any such claim, action, suit, proceeding or investigation as such expenses (including reasonable attorneys' fees’ fees and disbursements) as are incurred upon receipt from such Indemnified Party of a request therefor; provided (if and to the fullest extent permitted under required by the DGCL or other applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law Law) that such Indemnified Party undertakes to repay such advances amount if it is ultimately determined that such person Indemnified Party is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to indemnified under the DGCL or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence other applicable Law with respect to such claim, action, suit, proceeding or investigation. In the Company event any claim, action, suit, proceeding or investigation is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the vigorous defense of its officerssuch matter, directors provided that neither Parent nor the Surviving Corporation shall settle, compromise or employeesconsent to the entry of any judgment in any claim, it being understood action, suit, proceeding or investigation (and agreed that in which indemnification could be sought by such Indemnified Party hereunder) without the indemnification provided for in this Section 6.7 is not prior written consent of such Indemnified Party if and to or in substitution for the extent the claimant seeks any non-monetary relief from such claims under such policiesIndemnified Party.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will IOS shall, or will shall cause the Surviving Corporation to indemnify to, indemnify, defend and hold harmless each present and former person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director and or officer of the CompanyCompany (collectively, determined as of the Effective Time (the "Indemnified PartiesINDEMNIFIED PARTIES")) against (i) all losses, against any claims, damages, costs or and expenses (including reasonable attorneys' feesfees and expenses), judgmentsliabilities, fines, losses, claims, damages judgments and settlement amounts that are paid or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigativeinvestigative and whether asserted or claimed prior to, arising at or after the Effective Time) 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 and relates to or arises out of any action or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or omission occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, (the "INDEMNIFIED LIABILITIES"), and (ii) all Indemnified Liabilities based on, or arising out of, or pertaining to this Agreement or any of the transactions contemplated hereby, in each case to the fullest extent a corporation is permitted under applicable law Law to so indemnify; PROVIDED, HOWEVER, that the Surviving Corporation shall not be liable for any settlement of any claim effected without its written consent (and Parent which consent shall not be unreasonably withheld, conditioned or delayed). Without limiting the foregoing, in the event that any 35 such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising prior to, at or after the Effective Time), (w) IOS shall, or shall cause the Surviving Corporation to pay expenses as incurred 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, HOWEVER, that the person to whom expenses are advanced provides any undertaking required by applicable Law to repay such advance if it is ultimately determined by a court of competent jurisdiction (after exhaustion of all avenues of appeal) that such person is not entitled to indemnification; (x) the Indemnified Parties shall retain counsel reasonably satisfactory to the Surviving Corporation; (y) IOS shall, or shall cause the Surviving Corporation to, also advance pay all reasonable fees and expenses of such counsel for the Indemnified Parties (including reasonable attorneys' fees) as incurred subject to the fullest final sentence of this paragraph) promptly as statements thereof are received; and (z) IOS and the Surviving Corporation shall use all commercially reasonable efforts to assist in the defense of any such matter. Any Indemnified Party wishing to claim indemnification under this SECTION 6.05, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation, but the failure so to notify the Surviving Corporation shall not relieve the Surviving Corporation from any liability which it may have under this paragraph except to the extent permitted under applicable law provided such failure materially prejudices the person Surviving Corporation.
(b) Except to whom expenses the extent required by Law, IOS and the Surviving Corporation shall not take any action so as to amend, modify, limit or repeal the provisions for indemnification or exculpation from liability of Indemnified Parties contained in the certificates or articles of incorporation or by-laws (or other comparable charter documents) of the Surviving Corporation and its subsidiaries in effect as of the Effective Time (which as of the Effective Time shall be no less favorable to such individuals than those maintained by the Company on the date hereof) in such a manner as would adversely affect the rights of any Indemnified Party thereunder in respect of their serving in such capacities prior to the Effective Time.
(c) For a period of six years after the Effective Time, IOS shall, or shall cause the Surviving Corporation to, maintain in effect policies of directors' and officers' liability insurance maintained by the Company as of the date hereof; PROVIDED, HOWEVER, that IOS or the Surviving Corporation, as the case may be, may substitute therefor policies of at least the same coverage containing terms that are advanced provides no less advantageous with respect to matters occurring prior to or at the Effective Time to the extent such liability insurance can be maintained annually at a customary undertaking complying with applicable law cost to repay IOS or the Surviving Corporation, as applicable, not greater than 200% of the current annual premiums for such advances directors' and officers' liability insurance, which existing premium costs are set forth in the Company Disclosure Letter; PROVIDED, FURTHER, that if it is ultimately determined that such person is insurance cannot entitled be so maintained or obtained at such cost, IOS shall, or shall cause the Surviving Corporation to, maintain or obtain as much of such insurance as can be so maintained or obtained at a cost equal to indemnification)200% of the current annual premiums of the Company for its directors' and officers' liability insurance.
(d) Nothing In the event that IOS, Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then and in each such case, proper provisions shall be made so that the successors and assigns of IOS, Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Agreement is SECTION 6.05.
(e) The provisions of this SECTION 6.05 shall survive the consummation of the Merger at the Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and each party entitled to insurance coverage under SECTION 6.05(c), respectively, and his or her heirs and legal representatives, and shall be in addition to, and shall be construed to not impair, any other rights an Indemnified Party may have under the certificate of incorporation 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 by-laws of the Company Surviving Corporation or any of its officerssubsidiaries, directors under the DGCL or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policiesotherwise.
Appears in 1 contract
Samples: Merger Agreement (FTD Com Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation and each of individuals its Subsidiaries to, jointly and severally, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of applicable Law adopted after the date of this Agreement that increase the extent to which indemnification may be provided), indemnify, defend and hold harmless (and promptly advance expenses from time to time as incurred to the fullest extent permitted by Law; 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) each Person who is now, or has been at any time prior to the Effective Time were directorsor who becomes prior to the Effective Time, officers a director or employees officer of the Company or any of its Subsidiaries and any Person acting as director, officer, trustee, fiduciary, employee or agent of another Person (including any Company Benefit Plan) who is or has acted as such at the request of the Company or any such Subsidiary (each an “Indemnified Party”) from and against any and all costs or expenses (including reasonable attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement or incurred in connection with any actual or threatened claim (including a claim of violation of applicable Law), action, audit, demand, suit, other Proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative or other Proceeding at law or in equity or order or ruling, by reason of the fact that the Indemnified Party is or was a director or officer of the Company or its Subsidiaries or is or was a director, officer, trustee, fiduciary, employee or agent of another Person at the request of the Company, including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time. Parent and the Surviving Corporation shall cooperate with any Indemnified Party in the defense of any matter covered by this Section 6.8. Without limitation of the foregoing or any other provision of this Section 6.8, Parent and the Company agree that all rights to indemnification and exculpation from liability for acts or omissions occurring at or prior to the Effective Time and the rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party, whether provided in the certificate of incorporation or bylaws (or comparable organizational documents) of the Company or any of its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries, shall survive the Merger, be honored by Parent, the Surviving Corporation and its Subsidiaries and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(b) Subject to the following sentence, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation and each Subsidiary thereof to be maintained (including by providing sufficient funds to the Surviving Corporation or the applicable Subsidiary), at no expense to the beneficiaries, either (i) continue to maintain in full force and effect for six years from the Effective Time Time, if available, the current policies of the directors' ’ and officers' ’ liability insurance maintained by and fiduciary liability insurance (the Company “Current Insurance”) with respect to matters existing or occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); provided that Parent the Surviving Corporation may substitute therefor for the Current Insurance policies of at least the same coverage containing terms and conditions which that are not materially less advantageous) favorable with respect to matters existing or events occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); or (ii) purchase a six year extended reporting period endorsement with respect to the Current Insurance (a “Reporting Tail Endorsement”) and maintain such Reporting Tail Endorsement in full force and effect for its full term. To the extent availablepurchased after the date of this Agreement 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; providedprovided 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 first sentence of this Section 6.8(b), howeverbut subject to the second sentence of this Section 6.8(b), that the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding the foregoing, in no event shall Parent or the Company Surviving Corporation be required to expend more than for such policies an annual premium amount per year equal to 200in excess of 300% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided that in the event of the Current Insurance, Parent or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(c) For six years after The certificate of incorporation and bylaws of the Surviving Corporation and each of its Subsidiaries shall include provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties that are no less favorable to the Indemnified Parties than the provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties as set forth in the Company Charter and the Company Bylaws in effect on the date of this Agreement. Following the Effective Time, the Surviving Corporation shall, and Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present its Subsidiaries to, maintain in effect and former director honor the provisions in its certificate of incorporation and officer bylaws providing for indemnification, advancement and reimbursement of the Company, determined as expenses and exculpation of the Effective Time (the "Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted 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 claimed except to make changes permitted by applicable Law that would enlarge the scope of the Indemnified Parties’ indemnification and advancement 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 and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior toto 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 Surviving Corporation, at or as the case may be, shall assume all of the obligations set forth in this Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.8(e) of the Company Disclosure Letter between the Company or any Subsidiary and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation bylaws.
(f) This Section 6.8 is intended for the irrevocable benefit of, and to grant third-party rights to, the fullest extent permitted Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent and the Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement, then Parent or the Surviving Corporation shall pay such Indemnified Party’s costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Corporation. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or the certificate of incorporation and bylaws of the Surviving Corporation or under any applicable law (Contracts, insurance policies or Laws and Parent shall, or and shall cause the Surviving Corporation and each of its Subsidiaries to, also advance fees honor and expenses (including reasonable attorneys' fees) as incurred to perform under all indemnification agreements entered into by the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Company or any of its Subsidiaries.
(dg) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 Section 6.8 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) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Company and the Surviving Corporation to indemnify and hold harmless each present and former individual who at the Effective Time is, or at any time prior to the Effective Time was, a director and or officer of the Company, determined as Company or of a Subsidiary of the Effective Time Company (each, an “Indemnitee” and, collectively, the "Indemnified Parties")“Indemnitees”) with respect to all claims, against any costs or expenses (including reasonable attorneys' fees)liabilities, losses, damages, judgments, fines, lossespenalties, claimscosts (including amounts paid in settlement or compromise) and expenses (including, damages or liabilities (collectivelybut not limited to, "Costs"fees and expenses of legal counsel, experts and litigation consultants as well as any appeal bonds) incurred in connection with any claim, suit, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was, or was or is deemed to have status as, a director or officer of the Company or pertaining to matters relating to their duties such Subsidiary or actions (B) acts or omissions by an Indemnitee in their the Indemnitee’s capacity as officers and directors and existing a director, officer, employee or occurring agent of the Company or such Subsidiary or taken at the request of the Company or prior to such Subsidiary (including in connection with serving at the Effective Timerequest of the Company or such Subsidiary as a director, whether asserted officer, employee, agent, trustee or claimed fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, at or after the Effective TimeTime (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated hereby), to the fullest extent permitted under applicable law Law. All obligations of the Company and such Subsidiaries to the Indemnitees in respect of advancement, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in (A) the Certificate of Incorporation and By-laws and the organizational documents of such Subsidiaries as currently in effect and (B) the indemnification agreements listed on Section 6.5 of the Company Disclosure Schedule, shall survive the transactions contemplated hereby and continue in full force and effect in accordance with their respective terms, in each case, whether or not the Company’s insurance covers all such costs, for a period of six years following the Effective Time. From and after the Effective Time, Parent shalland the Surviving Corporation shall be jointly and severally liable to pay and perform in a timely manner such indemnification, or advancement and exculpation obligations. Without limiting the foregoing, Parent, from and after the Control Time until the later of (x) six years from the Effective Time and (y) expiration of the applicable statute of limitations for any item set forth in clause (i) above, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and advancement and indemnification than are set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, Parent shall cause the Company and the Surviving Corporation to pay any expenses (including, but not limited to, also advance fees and expenses of legal counsel, experts and litigation consultants, as well as any appeal bonds) of any Indemnitee under this Section 6.5 (including reasonable attorneys' feesin connection with enforcing the advancement, indemnity and other obligations referred to in this Section 6.5) as incurred to the fullest extent permitted under applicable law provided Law; provided, that the person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined to the extent, and only to the extent, required by applicable Law.
(b) An Indemnitee shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 6.5 (each, a “Claim”) with counsel selected by the Indemnitee, which counsel shall be reasonably acceptable to Parent; provided, however, that Parent (i) shall be permitted to participate in the defense of such person Claim at its own expense and (ii) shall not be liable for any settlement effected without Parent’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) Parent shall bear the full cost of, and shall cause the Company to maintain in effect, for at least six years commencing on and immediately following the Effective Time, one or more director and officer tail policy(ies) as described below (collectively, the “D&O Tail Policies”). Prior to the Purchase Time, the Company shall obtain one or more prepaid, fully-earned and non-cancellable D&O Tail Policies applicable on and after the Effective Time, for a period equal to the greater of (i) six years immediately following the Effective Time and (ii) the statute(s) of limitations applicable to the acts and omissions of the directors and officers of the Company up through and including the Effective Time (the greater of such periods, the “D&O Tail Period”), in lieu of the current policies or directors and officers liability insurance maintained by the Company. Such D&O Tail Policies shall provide at least the same coverage with respect to amounts, terms and conditions, as the directors and officers liability insurance policies (including, but not limited to, both primary and any and all excess policies) maintained by the Company on the date hereof (collectively, the “Current D&O Policies”), or policies with at least the same coverage limits and amounts as the Current D&O Policies, containing terms and conditions which are no less favorable to the individuals or the Company covered by such Current D&O Policies, than the terms of such policies, so long as the Company is not entitled required to indemnificationpay a premium in excess of 200% of the last annual premium paid in the aggregate by the Company for such Current D&O Policies (the dollar amount of such percentage being the “Maximum Premium”). If the Company is unable to obtain, or unable to cause to be obtained, the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, it shall instead obtain as much comparable insurance as possible for a director and officer tail premium equal to the Maximum Premium for the D&O Tail Period. Neither Parent nor Surviving Corporation shall take, or allow to be taken, any action to terminate, or which could reasonably be expected to result in the termination of, the D&O Tail Policies, during the D&O Tail Period.
(d) Nothing The provisions of this Section 6.5 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in this Agreement is intended addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 6.5 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.5 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.5 applies shall be construed to third party beneficiaries of this Section 6.5).
(e) Parent and Purchaser hereby acknowledge that Indemnitee has or shall releasemay, waive or impair any in the future, have certain rights to directors' indemnification, advancement of expenses and/or insurance provided by other entities and/or organizations not associated with Parent, Company and officers' insurance claims under any policy that is or has been in existence their insurers (collectively, the “Other Indemnitors” and, individually, an “Other Indemnitor”). Parent, Purchaser and the Company hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to Indemnitee by Parent, Purchaser, the Company, the Surviving Corporation or any Other Indemnitor, whether pursuant to any certificate of incorporation, by-laws, partnership agreement, operating agreement, indemnification agreement or other document or agreement and/or pursuant to Section 6.5 of this Agreement (any of the foregoing is herein an “Indemnification Agreement”) (i) the Surviving Corporation shall, at all times, be the indemnitor of first resort (i.e., its obligations to Indemnitee shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee shall be secondary), (ii) it shall, at all times, be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or any Indemnification Agreement), without regard to any rights Indemnitee may have against the Other Indemnitors, and (iii) it irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof. Parent, Purchaser and the Company hereby further agree that no advancement, indemnification or other payment by the Other Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company or the Surviving Corporation shall affect the foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of Indemnitee against the Company or the Surviving Corporation, and the Company and/or the Surviving Corporation shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of Indemnitee.
(f) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its officersproperties and assets to any Person, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors and assigns of Parent and the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.5.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Buyer shall, to the fullest extent permitted by Law, cause the Surviving Corporation (from and after the Effective Time) to honor all of individuals who at the Company's obligations to indemnify, defend and hold harmless (including any obligations to advance funds for expenses) the current and former directors and officers of the Company and the Company Subsidiaries against all losses, claims, damages or liabilities arising out of acts or omissions by any such directors and officers occurring prior to the Effective Time were directors, officers or employees to the maximum extent that such obligations of the CompanyCompany exist on the date of this Agreement, whether pursuant to the Company Charter, the Company By-Laws, the contractual obligations set forth on Schedule 6.04 or the DGCL and such obligations shall survive the Merger and shall continue in full force and effect in accordance with the terms of the Company Charter, the Company By-Laws, any such contractual obligations and the DGCL from the Effective Time until the expiration of the applicable statute of limitations with respect to any claims against such directors or officers arising out of such acts or omissions. In the event a current or former director or officer of the Company or any of its subsidiaries is entitled to indemnification under this Section 6.04(a), such director or officer shall be entitled to reimbursement from the Surviving Corporation for reasonable attorney's fees and expenses incurred by such director or officer in pursuing such indemnification, including payment of such fees and expenses by the Surviving Corporation in advance of the final disposition of such action upon receipt of an undertaking by such current or former director or officer to repay such payment unless it shall be adjudicated that such current or former director or officer was entitled to such payment.
(b) Parent The Company shall maintain, through the Effective Time, the Company's existing directors' and officers' insurance in full force and effect without reduction of coverage. From and after the Effective Time and for a period of six years after the Effective Time, Buyer shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent Buyer may substitute therefor therefore policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are not materially no less advantageousadvantageous to the insureds) with respect to matters claims arising from or related to facts or events occurring prior to which occurred at or before the Effective Time to the extent availableTime; provided, however, that in no event Buyer shall Parent or not be obligated to make annual premium payments for such insurance to the Company be required to expend more than an amount per year equal to extent such premiums exceed 200% of current the annual premiums paid as of the date hereof by the Company for such insurance (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; andsuch 200% amount, provided, further that if the annual premiums of "Maximum Premium"). If such insurance coverage exceed such amountcannot be obtained at all, or can only be obtained at an annual premium in excess of the Surviving Corporation Maximum Premium, Buyer shall be obligated maintain the most advantageous policies of directors' and officers' insurance obtainable for an annual premium equal to obtain a policy with the greatest coverage available for a cost not exceeding such amountMaximum Premium. The Company represents to Buyer that the last annual premium paid prior to the date of this Agreement was $66,183.
(c) For six years after the Effective Time, Parent agrees that it will The Certificate of Incorporation or will cause By-Laws of the Surviving Corporation to indemnify and hold harmless each present and former director and officer shall contain the provisions that are set forth, as of the date of this Agreement, in Article 4 of the By-Laws of the Company, determined as 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 "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out rights thereunder of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring individuals who at or at any time prior to the Effective TimeTime were directors, whether asserted officers, employees or claimed prior to, at or after other agents of the Effective Time, to the fullest extent permitted under applicable law Company (and Parent shall, or shall cause during such period the Certificate of Incorporation of the Surviving Corporation toshall not be amended, also advance fees and expenses (including reasonable attorneys' fees) as incurred to repealed or otherwise modified in any manner that would have the fullest extent permitted under applicable law provided effect of so amending, repealing or otherwise modifying any such provisions of the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnificationBy-Laws).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to If the Company Surviving Corporation or any of its officers, directors successors or employees, it being understood assigns (i) consolidates with or merges into any other Person and agreed that shall not be the indemnification provided for continuing or surviving corporation or entity of such consolidation or merger and the continuing or surviving entity does not assume the obligations of the Surviving Corporation set forth in this Section 6.7 is not prior 6.04, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume, as a matter of Law or otherwise, the obligations set forth in substitution for any such claims under such policiesthis Section 6.04.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance.
(a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the The Surviving Corporation shall, and Purchaser shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify indemnify, defend and hold harmless each harmless, and provide advancement of expenses to, the present and former director directors, officers and employees of Company and its Subsidiaries (each such director, officer of the Company, determined as of the Effective Time (the or employee an "Indemnified PartiesPerson"), in each case to the fullest extent permitted by Law, including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date hereof that increase the extent to which a corporation may indemnify its officers and directors or any Indemnified Person, from and against any and all costs or expenses (including reasonable attorneys' fees, expenses and disbursements), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative 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 at or prior to the Effective Time (including for acts or omissions occurring in connection with the approval of this Agreement, the performance of Company's obligations hereunder and the consummation of the transactions contemplated hereby or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers the Merger and directors and existing or occurring at or prior to the Effective Time, other transactions contemplated hereby) whether asserted or claimed prior to, at or after the Effective Time, .
(b) Subject to the fullest extent permitted under applicable law (and Parent following sentence, the Surviving Corporation shall, or and Purchaser shall cause the Surviving Corporation to, also advance fees at no expense to the beneficiaries, purchase as of the Effective Time a tail policy to the current policy of directors' and officers' liability insurance maintained by Company which tail policy shall be effective for a period from the Effective Time through and including the date six (6) years after the Closing Date (a "Reporting Tail Endorsement") with respect to claims arising from facts or events that occurred on or before the Effective Time, and which tail policy shall contain coverage and amounts at least as favorable to the Indemnified Persons as the coverage currently provided by Company's current directors' and officers' liability insurance policies (in the aggregate); provided, however, that in no event shall the Surviving Corporation be required to expend, for the entire tail policy, in excess of 300 per cent of the annual premium currently paid by Company for its current policies of directors' and officers' liability insurance (in the aggregate) (which premiums are hereby represented and warranted by the Company to currently be approximately $2,000,000 per annum); and, provided, further that, if the premium of such insurance coverage exceeds such amount, the Surviving Corporation after consultation with Company shall be obligated to obtain a policy or policies with the greatest coverage available for a cost not exceeding such amount. 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 Purchaser and as are reasonably acceptable to 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. Subject to both the proviso in the first sentence and to the second sentence of this Section 5.6(b), Company shall be permitted at its sole and exclusive option to purchase, after reasonable consultation with Purchaser, the Reporting Tail Endorsement (in lieu of the Surviving Corporation) prior to the Effective Time.
(c) The certificate of incorporation and bylaws of the Surviving Corporation shall include provisions for indemnification, advancement and reimbursement of expenses (including reasonable attorneys' fees) and exculpation of the Indemnified Persons on the same basis as incurred set forth in the certificate of incorporation and bylaws of Company in effect on the date hereof. Following the Effective Time, the Surviving Corporation shall, and Purchaser shall cause the Surviving Corporation to, maintain in effect the provisions in its certificate of incorporation and bylaws providing for indemnification, advancement and reimbursement of expenses and exculpation of Indemnified Persons, as applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law provided 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 person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)scope of the Indemnified Persons' indemnification rights thereunder.
(d) From and after the Effective Time, Purchaser and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 5.6(d) of the Company Disclosure Schedule between Company or any Subsidiary and any of the Indemnified Persons, or any such provisions contained in the Surviving Corporation certificate of incorporation or bylaws to the extent such provisions apply to Indemnified Persons.
(e) Any Indemnified Person wishing to claim indemnification under paragraph (a) of this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Purchaser and the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Person if such failure does not materially prejudice the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Purchaser or the Surviving Corporation shall have the right to assume the defense thereof and neither Purchaser nor the Surviving Corporation shall be liable to such Indemnified Persons for any legal expenses of other counsel or any other expense subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that if Purchaser or the Surviving Corporation elects not to assume such defense or counsel or the Indemnified Persons advise that there are issues which raise conflicts of interest between Purchaser or the Surviving Corporation and the Indemnified Persons, the Indemnified Persons may retain counsel satisfactory to them, and Purchaser shall and shall cause the Surviving Corporation to pay all reasonable fees and expenses of such counsel for the Indemnified Persons promptly as statements therefor are received; provided, however, the Surviving Corporation shall be obligated pursuant to this paragraph (e) to pay for only one firm of counsel for all Indemnified Persons in any jurisdiction, (ii) the Indemnified Persons will cooperate in the defense of any such matter and (iii) neither Purchaser nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent; and provided, further, that neither Purchaser nor the Surviving Corporation shall have any obligation hereunder to any Indemnified Person if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Person in the manner contemplated by paragraph (a) of Section 5.6 is prohibited by applicable Law.
(f) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Persons on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 5.6 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(g) The covenants contained in this Section 5.6 are intended to be for the irrevocable benefit of and to grant third-party rights to, and shall be enforceable by, each of the Indemnified Persons and their respective heirs and legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to Law, Contract or otherwise and shall be binding on all successors and assigns of Purchaser and the Surviving Corporation. The obligations of Purchaser under this Section 5.6 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person unless the affected Indemnified Person shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Person shall be a third-party beneficiary of this Section 5.6, and entitled to enforce the covenants contained in this Section 5.6. If any Indemnified Person makes any claim for indemnification or advancement of expenses under this Section 5.6 that is denied by Purchaser and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Person is entitled to such indemnification, then Purchaser or the Surviving Corporation shall pay such Indemnified Person's reasonable costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Purchaser and/or the Surviving Corporation. The rights of the Indemnified Persons under this Section 5.6 shall be in addition to, and not in substitution for, any rights such Indemnified Persons may have under the certificate of incorporation and the bylaws of Company, the certificate of incorporation and bylaws (or comparable organizational documents) of any of Company's Subsidiaries or the certificate of incorporation and bylaws of the Surviving Corporation or under any applicable Contracts, insurance policies or Laws and Purchaser shall, and shall cause the Surviving Corporation to, honor and perform under all indemnification agreements entered into by Company or any of its Subsidiaries.
(h) In the event that Purchaser, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Purchaser shall cause proper provision to be made prior to consummation of any transaction of the type described in clauses (i) and (ii) of this sentence so that the successors or assigns of Purchaser or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.6. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its respective Subsidiaries for any of their respective directors, officers, directors employees or employeesother Indemnified Person, it being understood and agreed that the indemnification provided for in this Section 6.7 5.6 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers Without limiting any additional rights that any employee may have under any employment agreement or employees of the Company.
(b) Parent shall cause to be maintained Company Plan as in effect for six years on the date hereof and which has previously been made available to Parent, from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountoccurs, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer and director of the Company and its subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities (collectivelyincluding attorneys’ fees and disbursements, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that an Indemnified Party is or was an officer or director of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or non-profit entity or (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (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 Law (and Parent shallprovided that such indemnification shall be subject to any limitation imposed from time to time under applicable Law). In the event of any such claim, action, suit, proceeding or shall cause investigation, (A) each Indemnified Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation to, also advance fees and expenses within ten (including reasonable attorneys' fees10) as incurred to Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Party of a request therefor; provided the that any person to whom expenses are advanced provides a customary undertaking complying with applicable law an undertaking, if and only to the extent then required by the PaBCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter.
(db) Nothing in this Agreement is intended to, The articles of incorporation and bylaws of the Surviving Corporation 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 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 Articles of Incorporation and Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Prior to the Effective Time, the Company shall obtain and fully pay the premium for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are no less favorable, in the aggregate, as the Company’s existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Company or any of its officerssubsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby). If the Company is unable to obtain such “tail” insurance policies as of the Effective Time by reason of such “tail” insurance policies being unavailable for purchase for any reason, directors the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are no less favorable, in the aggregate, as provided in the Company’s existing policies as of the date hereof, or employeesthe Surviving Corporation shall, it being understood and agreed Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are no less favorable, in the aggregate, as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions and benefits of this Section 6.6 shall continue in full effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to applicable Law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.6.
Appears in 1 contract
Samples: Merger Agreement (Tollgrade Communications Inc \Pa\)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, jointly and severally, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of individuals applicable Law adopted after the date of this Agreement that increase the extent to which indemnification may be provided), indemnify, defend and hold harmless (and promptly advance expenses from time to time as incurred to the fullest extent permitted by Law, 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) each Person who is now, or has been at any time prior to the Effective Time were directorsor who becomes prior to the Effective Time, officers a director or employees officer of the Company or any of its Subsidiaries, any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) who is or has acted as such at the request of the Company (each an “Indemnified Party”) from and against any and all costs or expenses (including attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement or incurred in connection with any actual or threatened claim (including a claim of violation of applicable Law), action, audit, demand, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative or other proceeding at law or in equity or order or ruling, by reason of the fact that the Indemnified Party is or was a director or officer of the Company or its Subsidiaries or is or was a director, officer, trustee, fiduciary, employee or agent of another Person at the request of the Company, including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time. Parent and the Surviving Corporation shall reasonably cooperate with any Indemnified Party in the defense of any matter covered by this Section 6.8. Without limitation of the foregoing or any other provision of this Section 6.8, Parent and the Company agree that all rights to indemnification and exculpation from liability for acts or omissions occurring at or prior to the Effective Time and the rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party, whether provided in the certificate of incorporation or bylaws (or comparable organizational documents) of the Company or any of its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries in existence as of the date hereof and set forth on Section 6.8(e) of the Company Disclosure Letter, shall survive the Merger, be honored by the Surviving Corporation and its Subsidiaries and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(b) Subject to the following sentence, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, at no expense to be maintained the beneficiaries, either (i) continue to maintain in full force and effect for six (6) years from the Effective Time Time, if available, the current policies of the directors' ’ and officers' ’ liability insurance maintained by and fiduciary liability insurance (the Company “Current Insurance”) with respect to matters existing or occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); provided that Parent the Surviving Corporation may substitute therefor for the Current Insurance policies of at least the same coverage containing terms and conditions which that are not materially less advantageous) favorable in the aggregate with respect to matters existing or events occurring at or prior to the Effective Time (including the Merger and the other 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 availablepurchased after the date of this Agreement 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; providedprovided 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 first sentence of this Section 6.8(b), howeverbut subject to the second sentence of this Section 6.8(b), that the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding the foregoing, in no event shall Parent or the Company Surviving Corporation be required to expend more than for such policies an annual premium amount per year equal to 200in excess of 300% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided that in the event of the Current Insurance, Parent or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(c) For six years after Immediately following the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall include provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties that are, in substance, no less favorable to the Indemnified Parties than the provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties as set forth in the Company Charter and the Company Bylaws in effect on the date of this Agreement. For six (6) years following the Effective Time, the Surviving Corporation shall, and Parent agrees that it will or will shall cause the Surviving Corporation to indemnify to, maintain in effect the provisions in its certificate of incorporation and hold harmless each present bylaws providing for indemnification, advancement and former director reimbursement of expenses and officer exculpation of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted 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 claimed except to make changes permitted by applicable Law that would enlarge the scope of the Indemnified Parties’ indemnification and advancement 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 and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior toto 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 Surviving Corporation, at or as the case may be, shall assume all of the obligations set forth in this Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.8(e) of the Company Disclosure Letter between the Company or any Subsidiary and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation bylaws.
(f) This Section 6.8 is intended for the irrevocable benefit of, and to grant third-party rights to, the fullest extent permitted Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent and the Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement, then Parent or the Surviving Corporation shall pay such Indemnified Party’s costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Corporation. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Subsidiaries of the Company or the bylaws of the Surviving Corporation or under any applicable law (Contracts, insurance policies or Laws and Parent shall, or and shall cause the Surviving Corporation to, also advance fees honor and expenses (including reasonable attorneys' feesperform under all indemnification agreements listed in Section 6.8(e) as incurred to of the fullest extent permitted under applicable law provided Company Disclosure Letter entered into by the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Company or any of its Subsidiaries.
(dg) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.8 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) thereunder of individuals who at From and after the Effective Time were directors, officers or employees and ending on the sixth (6th) anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountTime, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, determined as of the Effective Time when acting in such capacity) (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities awards paid in settlement (collectively, "“Costs"”) incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and connection with matters existing or occurring at or prior to the Effective Time (including the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Michigan Law and its Company Articles of Incorporation and Company Bylaws in effect on the date of this Agreement to indemnify such Person (and Parent shall, or shall cause the Surviving Corporation to, also shall advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in enforcing such Person’s rights under this Section 7.10, to the fullest extent permitted that such indemnification with respect to or advancement of such expenses is authorized under applicable law the Company Articles of Incorporation, the Company Bylaws or the articles of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification pursuant to this Section 7.10); provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under Michigan Law and the Company’s Articles of Incorporation and Bylaws shall be made by independent counsel selected by the Surviving Corporation and approved by a majority of the Indemnified Parties who are seeking indemnity with respect to such Proceeding (and if such parties cannot agree, counsel will be selected by Judicial Arbitration and Mediation Services). In the event of any such Proceeding (x) neither Parent nor 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, and (y) the Surviving Corporation shall cooperate in the defense of any such matter, and no such settlement shall affect the Surviving Corporation’s indemnification obligations hereunder. 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 7.10, (i) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, using Xxxxx Day as counsel or such other counsel as may be selected by the board of directors of the Surviving Corporation and approved by a majority of the Indemnified Parties who are seeking indemnity with respect to such Proceeding (and if such parties cannot agree, counsel will be selected by Judicial Arbitration and Mediation Services), (ii) each Indemnified Party shall be entitled to retain his or her own counsel at the Surviving Corporation’s expense (which may be Xxxxx Day) if the Surviving Corporation shall elect not to control the defense of any such Proceeding and (iii) no Indemnified Party shall be liable for any settlement effected without his or her prior express written consent.
(b) Any Indemnified Party wishing to claim indemnification under Section 7.10(a), upon learning of any such Proceeding, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying Party.
(c) The provisions in the Surviving Corporation’s articles of incorporation and bylaws with respect to indemnification), advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company Articles of Incorporation and Company Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(d) Parent shall cause the Surviving Corporation to purchase, at no expense to the beneficiaries, a six-year prepaid “tail policy” providing at least the same coverage and amounts as, and containing terms and conditions that are no less advantageous to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time, including the transactions contemplated hereby, and from insurance carriers having at least an “A- VII” rating by A.M. Best with respect to directors’ and officers’ liability insurance. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail policy” in full force and effect and continue to honor their respective obligations thereunder.
(e) If the Surviving Corporation or its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Corporation shall assume all of the obligations set forth in this Section 7.10.
(f) The provisions of this Section 7.10 shall survive the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and representatives.
(g) The rights of the Indemnified Parties under this Section 7.10 shall be in addition to any rights such Indemnified Parties may have under the Company Articles of Incorporation or Company Bylaws or the comparable governing instruments of any of its subsidiaries, or under any applicable Contracts or Laws. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 7.10 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were directors, officers or employees through the sixth (6th) anniversary of the Company.
(b) Parent shall cause to be maintained in effect for six years from date on which the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as Company or any Subsidiary of the Effective Time Company (in each case, to the extent acting in such capacity) (the "“Indemnified Parties"”), against any reasonable and documented costs or expenses (including reasonable and documented attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities (collectively, "Costs") awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, investigative and whether formal or informal in each case arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and connection with matters existing or occurring at prior to the Effective Time (including the fact that such Person is or was a director or officer of the Company or any of its Subsidiaries or any acts or omissions occurring or alleged to occur prior to the Effective Time) (each, whether asserted or claimed prior to, at or after the Effective Timea “Proceeding”), to the fullest extent that the Company would have been permitted under applicable law (Law or pursuant to any indemnification agreements with the Company and Parent shallany of its Subsidiaries in effect as of the Effective Time, or shall cause and the Surviving Corporation toshall, also to the fullest extent the Company would have been permitted under applicable Law, advance fees and expenses (including reasonable attorneys' feesand documented legal fees and expenses) as incurred by an Indemnified Party in the defense of any Proceeding, including any expenses incurred in enforcing such Indemnified Party’s rights under this Section 6.11; provided that, notwithstanding anything to the fullest extent permitted under applicable law provided contrary set forth herein or otherwise, the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnificationindemnification pursuant to this Section 6.11). 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 relates only to monetary damages for which the Surviving Corporation is entirely responsible or includes an unconditional release of such Indemnified Party from all liability arising out of or related to such Proceeding or such Indemnified Party otherwise consents in writing, 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 6.11, (i) the Surviving Corporation or Parent shall have the right, but not the obligation, to control the defense thereof after the Effective Time, (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 and documented fees and expenses of one 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).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 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) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will shall, or will shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer, director or employee of the Company and its subsidiaries in their capacity as such and not as stockholders or optionholders of the Company or its subsidiaries (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its subsidiaries or (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (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 Law. In the event of any such claim, action, suit, proceeding or investigation, (and x) each Indemnified Party will be entitled to advancement of reasonable expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten business days of receipt by Parent or the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Party of a reasonably detailed request therefor; provided the that any person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) neither Parent nor the Surviving Corporation shall 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 Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (z) the Surviving Corporation shall cooperate in the defense of any such matter.
(db) Nothing 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 individuals who were directors and officers prior to the Effective Time than are presently set forth in this Agreement the Company's Certificate of Incorporation and By-laws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals. (c) Prior to the Effective Time, the Company shall endeavor to (and if it is intended unable to, Parent shall be construed cause the Surviving Corporation to after the Effective Time) obtain and fully pay (up to a maximum cost of 300% of the current annual premium paid by the Company for its existing coverage in the aggregate) for "tail" insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include coverage for the Company) with a claims period of at least six years from the Effective Time from an insurance carrier with the same or shall release, waive or impair any rights better credit rating as the Company's current insurance carrier with respect to directors' and officers' liability insurance claims under any policy that is or has been in existence 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 Effective Time. Parent shall, and shall cause the Surviving Corporation to, honor and perform under (i) all indemnification agreements entered into by the Company or any of its officerssubsidiaries and (ii) the obligations set forth on Section 6.7(c) of the Company Disclosure Schedule. (d) Notwithstanding anything herein to the contrary, directors if any claim, action, suit, proceeding or employeesinvestigation (whether arising before, it being understood and agreed that at or after the indemnification provided for in Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 is not prior to shall continue in effect until the final disposition of such claim, action, suit, proceeding or in substitution for any such claims under such policiesinvestigation.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent the Surviving Corporation agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the CompanyCompany or any of its subsidiaries (in each case, determined as of to the Effective Time extent acting in such capacity) (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages damages, liabilities or liabilities (collectively, "Costs") awards paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and whether formal or informal (each, a “Proceeding”), arising out of or pertaining to matters of, relating to their duties or actions in their capacity as officers and directors and existing connection with the fact that such Person is or was a director or officer of the Company or any of its subsidiaries or any acts or omissions occurring at or alleged to occur prior to the Effective TimeTime in such Person’s capacity as a director or officer of the Company, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under applicable law Delaware Law and its Certificate of Incorporation and Bylaws in effect on the date of this Agreement to indemnify such Person (and the Surviving Corporation shall (and Parent shall, or shall cause the Surviving Corporation to, also ) advance fees and expenses (including reasonable attorneys' feeslegal fees and expenses) as incurred in the defense of any Proceeding, including any expenses incurred in successfully enforcing such Person’s rights under this Section 6.10, regardless of whether indemnification with respect to or advancement of such expenses is authorized under the fullest extent permitted under applicable law Certificate of Incorporation, the Bylaws or the certificate of incorporation and bylaws, or equivalent organizational documents, of any subsidiary; provided that the person Person to whom expenses are advanced provides a customary an undertaking complying with applicable law to repay such advances if it is ultimately determined that such person Person is not entitled to indemnification pursuant to this Section 6.10). 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 has been sought by such Indemnified Party hereunder, unless such settlement, compromise or consent relates only to monetary damages for which the Surviving Corporation is Table of Contents entirely responsible or 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) and (y) the Surviving Corporation shall reasonably cooperate with the Indemnified Party 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 shall have the right to control the defense thereof after the Effective Time, (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 promptly after statements therefor are received, if the Surviving Corporation shall elect to control the defense of any such Proceeding, and (iv) no Indemnified Party shall be liable to Parent or the Surviving Corporation for any settlement effected without his or her prior express written consent; provided that for purposes of clauses (ii) and (iii) the Indemnified Party on behalf of whom fees and expenses are paid provides an undertaking to repay such fees and expenses if it is ultimately determined that such Person is not entitled to indemnification pursuant to this Section 6.10).
(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, 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 indemnifying Party.
(c) For a period of six years after the Effective Time, the provisions in the Surviving Corporation’s certificate of incorporation and bylaws with respect to indemnification), advancement of expenses and exculpation of former or present directors and officers shall be no less favorable to such directors and officers than such provisions contained in the Company’s Certificate of Incorporation and Bylaws in effect as of the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(d) Parent shall maintain, or shall cause the Surviving Corporation to maintain, at no expense to the beneficiaries, in effect for at least six years from the Effective Time the current policies of the directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company (provided that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof) with respect to matters existing or occurring at or prior to the Effective Time. At Parent’s option, in lieu of maintaining such current policies, the Company shall purchase from insurance carriers with comparable credit ratings, no later than the Effective Time, a six-year prepaid “tail policy” providing at least the same coverage and amounts containing terms and conditions that are no less advantageous in the aggregate to the insured than the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events that occurred at or before the Effective Time, including the transactions contemplated hereby; 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 Table of Contents policy more than 300% 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. In the event the Company elects to purchase such a “tail policy”, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain such “tail policy” in full force and effect and continue to honor their respective obligations thereunder. Parent agrees to cause the Surviving Corporation to honor and perform under, all indemnification agreements entered into by the Company or any of its subsidiaries with any Indemnified Party.
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 6.10.
(f) The provisions of this Section 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.
(g) The rights of the Indemnified Parties under this Section 6.10 shall be in addition to any rights such Indemnified Parties may have under the Certificate of Incorporation or Bylaws of the Company or the comparable governing instruments of any of its subsidiaries, or under any applicable Contracts or Laws. Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' ’ and officers' ’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.10 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation and each of individuals its Subsidiaries to, jointly and severally, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of applicable Law adopted after the date of this Agreement that increase the extent to which indemnification may be provided), indemnify, defend and hold harmless (and promptly advance expenses from time to time as incurred to the fullest extent permitted by Law; 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) each Person who is now, or has been at any time prior to the Effective Time were directorsor who becomes prior to the Effective Time, officers a director or employees officer of the Company or any of its Subsidiaries and any Person acting as director, officer, trustee, fiduciary, employee or agent of another Person (including any Company Benefit Plan) who is or has acted as such at the request of the Company or any such Subsidiary (each an “Indemnified Party”) from and against any and all costs or expenses (including reasonable attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement or incurred in connection with any actual or threatened claim (including a claim of violation of applicable Law), action, audit, demand, suit, other Proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative or other Proceeding at law or in equity or order or ruling, by reason of the fact that the Indemnified Party is or was a director or officer of the Company or its Subsidiaries or is or was a director, officer, trustee, fiduciary, employee or agent of another Person at the request of the Company, including the approval of this Agreement and the Merger and the other transactions contemplated hereby or arising out of or pertaining to the Merger and the other transactions contemplated hereby, whether asserted or claimed prior to, at or after the Effective Time. Parent and the Surviving Corporation shall cooperate with any Indemnified Party in the defense of any matter covered by this Section 6.8. Without limitation of the foregoing or any other provision of this Section 6.8, Parent and the Company agree that all rights to indemnification and exculpation from liability for acts or omissions occurring at or prior to the Effective Time and the rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party, whether provided in the certificate of incorporation or bylaws (or comparable organizational documents) of the Company or any of its Subsidiaries or in any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries, shall survive the Merger, be honored by Parent, the Surviving Corporation and its Subsidiaries and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(b) Subject to the following sentence, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation and each Subsidiary thereof to be maintained (including by providing sufficient funds to the Surviving Corporation or the applicable Subsidiary), at no expense to the beneficiaries, either (i) continue to maintain in full force and effect for six years from the Effective Time Time, if available, the current policies of the directors' ’ and officers' ’ liability insurance maintained by and fiduciary liability insurance (the Company “Current Insurance“) with respect to matters existing or occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); provided that Parent the Surviving Corporation may substitute therefor for the Current Insurance policies of at least the same coverage containing terms and conditions which that are not materially less advantageous) favorable with respect to matters existing or events occurring at or prior to the Effective Time (including the Merger and the other transactions contemplated hereby); or (ii) purchase a six year extended reporting period endorsement with respect to the Current Insurance (a “Reporting Tail Endorsement”) and maintain such Reporting Tail Endorsement in full force and effect for its full term. To the extent availablepurchased after the date of this Agreement 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; providedprovided 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 first sentence of this Section 6.8(b), howeverbut subject to the second sentence of this Section 6.8(b), that the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding the foregoing, in no event shall Parent or the Company Surviving Corporation be required to expend more than for such policies an annual premium amount per year equal to 200in excess of 300% of current the annual premiums currently paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant heretofor such insurance; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided that in the event of the Current Insurance, Parent or the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount in aggregate annual premiums.
(c) For six years after The certificate of incorporation and bylaws of the Surviving Corporation and each of its Subsidiaries shall include provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties that are no less favorable to the Indemnified Parties than the provisions for indemnification, advancement and reimbursement of expenses and exculpation of the Indemnified Parties as set forth in the Company Charter and the Company Bylaws in effect on the date of this Agreement. Following the Effective Time, the Surviving Corporation shall, and Parent agrees that it will or will shall cause the Surviving Corporation to indemnify and hold harmless each present its Subsidiaries to, maintain in effect and former director honor the provisions in its certificate of incorporation and officer bylaws providing for indemnification, advancement and reimbursement of the Company, determined as expenses and exculpation of the Effective Time (the "Indemnified Parties"), against any costs as applicable, with respect to the facts or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or circumstances occurring at or prior to the Effective Time, whether asserted 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 claimed except to make changes permitted by applicable Law that would enlarge the scope of the Indemnified Parties’ indemnification and advancement 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 and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior toto 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 Surviving Corporation, at or as the case may be, shall assume all of the obligations set forth in this Section 6.8.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.8(e) of the Company Disclosure Letter between the Company or any Subsidiary and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation bylaws.
(f) This Section 6.8 is intended for the irrevocable benefit of, and to grant third-party rights to, the fullest extent permitted Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent and the Surviving Corporation under this Section 6.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.8, and entitled to enforce the covenants contained in this Section 6.8. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.8 that is denied by Parent and/or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement, then Parent or the Surviving Corporation shall pay such Indemnified Party’s costs and expenses, including legal fees and expenses, incurred in connection with pursuing such claim against Parent and/or the Surviving Corporation. The rights of the Indemnified Parties under this Section 6.8 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or the certificate of incorporation and bylaws of the Surviving Corporation or under any applicable law (Contracts, insurance policies or Laws and Parent shall, or and shall cause the Surviving Corporation and each of its Subsidiaries to, also advance fees honor and expenses (including reasonable attorneys' fees) as incurred to perform under all indemnification agreements entered into by the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Company or any of its Subsidiaries.
(dg) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.8 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) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any employee, officers officer or employees of director may have under any agreement or Benefit Plan or under the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters 's charter or events occurring prior to the Effective Time to the extent available; providedbylaws, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company or any of its Subsidiaries (the "Indemnified PartiesDirectors and Officers"), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to matters relating to their duties or actions taken by them in their capacity as officers and or directors and existing or occurring at or prior to the Effective TimeTime (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 the fullest extent permitted under applicable law (Law for a period of six years from the Effective Time. Each Indemnified Director and Parent shallOfficer shall be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or shall cause investigation from the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to within ten Business Days of receipt by the fullest extent permitted under applicable law Surviving Corporation from the Indemnified Director or Officer of a request therefor; provided the person that any Person to whom expenses are advanced provides a customary an undertaking complying with applicable law 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.
(db) Nothing 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 officers than are presently set forth in the charter and by-laws of the Company and its Subsidiaries, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) On or prior to the date of this Agreement, the Company has received confirmation notices with respect to offers, on the terms and conditions set forth on Section 6.20(c) of 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 is intended toand 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 be construed provide for the Side A, B and C coverage for Indemnified Directors and Officers), on terms and conditions that have been made available to or shall releaseParent and Acquisition Corp., waive or impair any rights with a claims period of at least six years from the Offer Payment Date with respect to directors' and officers' insurance liability insurance, employee practices and fiduciary liability coverage, and with a claims under any policy that is or has been in existence 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) the date such Run-Off Policy is cancelled due to non-payment, the Company shall obtain 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 or any Company Subsidiary set forth in Section 6.20(c) of its officers, directors or employees, it being understood and agreed the Company Disclosure Schedule. In the event that the indemnification provided 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 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 Surviving Corporation to (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, plan purchaser protection, employee practices and fiduciary liability coverage in this Section 6.7 is not the aggregate (the "Maximum Amount")) for "tail" insurance policies (which shall provide for the Side A, B and C coverage for Indemnified Directors and Officers where the existing policies also include coverage for the Company) 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 in substitution procure such insurance coverage exceeds the Maximum Amount, the Company or the Surviving Corporation shall maintain or procure, for any such claims under such policiessix (6) year period or three (3) year period, as appropriate, the most advantageous policy of insurance for the Indemnified Directors and Officers obtainable for an annual premium equal to the Maximum Amount.
Appears in 1 contract
Samples: Acquisition Agreement (Goodys Family Clothing Inc /Tn)
Directors’ and Officers’ Indemnification and Insurance. (a) The indemnification provisions of the KPP GP LLC Agreement and the KPP Partnership Agreement as each is in effect as of the date hereof shall not be amended, repealed or otherwise modified for a period of at least six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directorswould be entitled to indemnification by KPP GP or KPP under the KPP GP LLC Agreement and the KPP Partnership Agreement. At the KPP Effective Time, officers or employees VLI assumes, and is jointly and severally liable for, and shall honor, guaranty and stand for, and shall cause the Surviving Partnership to honor in accordance with their respective terms each of the Companycovenants contained in this Section 6.7 applicable thereto.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters Without limiting Section 6.7(a), but without duplication or events occurring prior to the Effective Time to the extent available; providedany right or benefit thereunder, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause each of VLI and the Surviving Corporation Partnership shall, to the fullest extent permitted under applicable law, indemnify and hold harmless harmless, each present and former director director, officer or employee of KPP GP or KPP or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and officer of collectively, the Company, determined as of the Effective Time (the "“Indemnified Parties"”), in their capacity as such, against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages or damages, liabilities (collectively, "Costs") incurred 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 (x) any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director, manager, partner, employee or other fiduciary in any entity if such service was at the request of KPP GP or KPP) and (y) the KPP Merger and the other transactions contemplated by this Agreement or arising out of or pertaining to matters relating to their duties the transactions contemplated by this Agreement. In the event of any such actual or actions in their capacity as officers and directors and existing threatened claim, action, suit, proceeding or occurring at or prior to the Effective Time, investigation (whether asserted or claimed prior to, at arising before or after the Effective Time), to the fullest extent permitted under applicable law (i) KPP GP or KPP or VLI and Parent shall, or shall cause the Surviving Corporation toPartnership, also advance as the case may be, shall pay the reasonable fees and expenses (including of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to VLI and the Surviving Partnership, promptly after statements therefor are received and shall pay all other reasonable attorneys' fees) as incurred expenses in advance of the final disposition of such action, subject to the fullest extent permitted under applicable law provided receipt of any undertaking (which need not be secured) by or on behalf of the person to whom expenses are advanced provides a customary undertaking complying with applicable law Indemnified Party to repay such advances amount if it is ultimately shall be determined that such person Person is not entitled to indemnification)be indemnified pursuant to the KPP GP LLC Agreement or the KPP Partnership Agreement, as applicable, (ii) VLI and the Surviving Partnership will use all reasonable efforts to assist in and cooperate in the defense of any such matter, and (iii) to the extent any determination is required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under Delaware law and VLI’s or the Surviving Partnership’s respective partnership agreement, such determination shall be made by independent legal counsel acceptable to VLI or the Surviving Partnership, as the case may be, and the Indemnified Party; provided, however, that neither VLI nor the Surviving Partnership shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and, provided further, that if VLI or the Surviving Partnership advances or pays any amount to any Person under this paragraph (b) and if it shall thereafter be finally determined by a court of competent jurisdiction that such Person was not entitled to be indemnified hereunder for all or any portion of such amount, to the extent required by law, such person shall repay such amount or such portion thereof, as the case may be, to VLI or the Surviving Partnership, as the case may be. The Indemnified Parties as a group may not retain more than one law firm to represent them with respect to each matter unless there is, under applicable standards of professional conduct, a conflict requiring separate representation on any significant issue between the positions of any two or more Indemnified Parties.
(c) In the event the Surviving Partnership or VLI or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Partnership or VLI shall assume the obligations of the Surviving Partnership or VLI, as the case may be, set forth in this Section 6.7.
(d) Nothing For a period of six years after the Effective Time, VLI shall cause to be maintained in this Agreement is intended toeffect the current policies of directors’ and officers’ liability insurance maintained by KPP GP or KPP and its Subsidiaries (provided that VLI may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the Indemnified Parties, and which coverages and amounts shall be construed to or shall release, waive or impair any rights to directors' no less than the coverages and amounts provided at that time for VLI’s directors and officers' insurance claims under any policy that is or has been in existence ) with respect to matters arising on or before the Company Effective Time; provided, however, that in no event shall VLI (or any such successor) be required to expend in any one year an amount in excess of 200% of the annual premiums currently paid by KPP GP or KPP and its officersSubsidiaries for such insurance; and, directors provided, further, that if the annual premiums of such insurance coverage exceed such amount, VLI (or employeesany such successor) shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(e) The rights of each Indemnified Party hereunder shall be in addition to, it being understood and agreed not in limitation of, any other rights such Indemnified Party may have under the KPP GP LLC Agreement or KPP Partnership Agreement, any indemnification agreement, under Delaware law or otherwise, but shall in no event entitle any Indemnified Party to duplicative payments or reimbursement. The provisions of this Section 6.7 shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
(f) VLI shall pay all reasonable expenses, including reasonable attorneys fees, that may be incurred by an Indemnified Party in enforcing the indemnification indemnity and other obligations provided for in this Section 6.7 to the extent such Indemnified Party is not prior finally determined to be successful on the merits.
(g) Nothing contained in this Section 6.7 shall provide, or in substitution for shall be interpreted as providing, any such claims individual with rights or benefits that are duplicative of those that may be provided under such policiesany similar provisions of the KSL Merger Agreement.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directorsWithout limiting any additional rights that any Company Employee may have under any employment agreement or Company Plan, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time through the current policies sixth anniversary of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions date on which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeoccurs, Parent agrees that it will shall, or will shall cause the Surviving Corporation to continue to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer or director of the Company and its Subsidiaries (the "“Indemnified Parties"”), against any costs or expenses (including reasonable attorneys' fees)all claims, losses, liabilities, damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages or liabilities including 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 or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any of its Subsidiaries prior to the Effective Time or (ii) matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTime (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 law. In the event of any such claim, action, suit, proceeding or investigation, (x) each Indemnified Party will be entitled to advancement of all expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from Parent or the Surviving Corporation within ten Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced has provided an undertaking to repay such advances if it is ultimately adjudicated that such Person is not entitled to indemnification; and provided, further, that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 6.7(a) to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any such claim, action, suit, proceeding or investigation, (y) neither Parent nor Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any such proceeding or threatened action, suit, proceeding, investigation or claim, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (z) Parent and the Surviving Corporation shall and shall cause their respective Subsidiaries to cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be entitled to, but not obligated to, participate at their own expense in the defense and settlement of any such matter; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement agreed to or effected without the Surviving Corporation’s written consent.
(b) The certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company’s certificate of incorporation and bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals.
(c) Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses either (including reasonable attorneys' feesi) as incurred cause to be obtained at the Effective Time “tail” insurance policies, at no expense to the fullest extent permitted under applicable law provided beneficiaries, with a claims period of six years from the person to whom expenses are advanced provides a customary undertaking complying Effective Time, from an insurance carrier with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to the same or shall release, waive or impair any rights to directors' and officers' better credit rating as the Company’s current insurance claims under any policy that is or has been in existence carrier with respect to directors’ and officers’ liability insurance in an amount and scope and on terms at least as favorable to the Indemnified Parties as the Company’s current policies with respect to matters existing or occurring at or prior to the Effective Time or (ii) maintain at no expense to the beneficiaries, in effect for six years from the Effective Time, the current policies of the directors’ and officers’ liability insurance maintained by the Company (provided, that Parent or the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are not less advantageous to any beneficiary thereof than those of such policy in effect on the date of this Agreement) with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby); provided, that the Surviving Corporation will not be required to pay an annual premium therefor in excess of 300% of the last annual premium paid prior to the date hereof, which the Company represents and warrants to be $348,069 (the “Current Premium”), and that if the existing directors’ and officers’ liability insurance expires, is terminated or canceled during such six-year period, the Surviving Corporation will use reasonable efforts to obtain as much directors’ and officers’ liability insurance as can be obtained for the remainder of such period for a premium on an annualized basis not in excess of 300% of the Current Premium. Parent shall cause the Surviving Corporation to honor and perform under all indemnification agreements entered into by the Company or any of its officersSubsidiaries.
(d) Notwithstanding anything herein to the contrary, directors if any claim, action, suit, proceeding or employeesinvestigation (whether arising before, it being understood at or after the Effective Time) is made against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and agreed that shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise.
(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in Section 6.6 and this Section 6.7 is 6.7. In addition, the Surviving Corporation shall not prior distribute, sell, transfer or otherwise dispose of any of its assets in a manner that would reasonably be expected to or in substitution for any such claims render the Surviving Corporation unable to satisfy its obligations under such policiesthis Section 6.7.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time through the sixth anniversary of individuals the date on which the Effective Time occurs, each of Parent and the Surviving Corporation and their respective applicable Subsidiaries shall, (i) indemnify and hold harmless each individual who at the Effective Time were directorsis, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring any time prior to the Effective Time to the extent available; providedwas, however, that in no event shall Parent a director or officer of the Company be required to expend more than an amount per year equal to 200% or of current annual premiums paid by a Subsidiary of the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; each, an “Indemnitee” and, provided, further that if the annual premiums of such insurance coverage exceed such amountcollectively, the Surviving Corporation shall be obligated “Indemnitees”) with respect to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeall claims, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Companyliabilities, determined as of the Effective Time (the "Indemnified Parties")losses, against any costs or expenses (including reasonable attorneys' fees)damages, judgments, fines, lossespenalties, claims, damages costs (including amounts paid in settlement or liabilities compromise) and expenses (collectively, "Costs"including fees and expenses of legal counsel) incurred in connection with any claim, suit, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or pertaining to matters relating to their duties such Subsidiary or actions (B) acts or omissions by an Indemnitee in their the Indemnitee’s capacity as officers a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions), to the same extent such Indemnitees are entitled to indemnification as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable Law, the Company Charter Documents, the organizational documents of such Subsidiaries or any indemnification agreements in existence on the date of this Agreement and directors made available to Parent prior to the date hereof, and existing (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective TimeTime as provided in the Company Charter Documents and the organizational documents of such Subsidiaries as currently in effect; provided, whether asserted or claimed prior tohowever, that if, at or after any time prior to the sixth anniversary of the Effective Time, any Indemnitee delivers to Parent or the Surviving Corporation a written notice asserting a claim for indemnification under this Section 5.08(a), 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. Without limiting the foregoing, Parent, from and after the Closing until six (6) years from the Effective Time, shall cause, unless otherwise required by Law, the certificate of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the fullest extent permitted under applicable law Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified or superseded in any manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from the Closing until six (and 6) years from date on which the Effective Time occurs, Parent shall, or and shall cause the Surviving Corporation to, also advance any expenses (including the fees and expenses of legal counsel) of any Indemnitee under this Section 5.08 (including reasonable attorneys' feesin connection with enforcing the indemnity and other obligations referred to in this Section 5.08) as incurred to the fullest same extent permitted under such Indemnitees are entitled to advancement of expenses as of the date of this Agreement by the Company or any of its Subsidiaries pursuant to applicable law provided Law, the person Company Charter Documents, the organizational documents of such Subsidiaries or any indemnification agreements in existence on the date of this Agreement and made available to Parent prior to the date hereof, provided, however, that the individual to whom expenses are advanced provides a customary provides, if requested by Parent, an undertaking complying with applicable law to repay such advances if it is ultimately shall be determined that such person individual is not entitled to indemnificationbe indemnified pursuant to this Section 5.08(a). The Surviving Corporation shall reasonably cooperate in good faith in the defense of any such matters; provided, that requests by Indemnitees or their Representatives to interview Representatives, examine the books and records or access the properties of the Surviving Corporation shall be made during normal business hours and upon reasonable notice and shall not significantly or materially impact the operations of the Surviving Corporation.
(b) Prior to the Effective Time, the Company may purchase, for an aggregate amount not to exceed 300% of the current aggregate annual premium (the “Maximum Premium”), a six-year prepaid “tail policy” (“Tail Policy”) providing coverage for the Indemnitees on terms and conditions providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, covering without limitation the Transactions; provided, however, that if the premium for such Tail Policy shall exceed the Maximum Premium, the Company shall provide or cause to be provided a Tail Policy for the applicable individuals with the best coverage as shall then be available at an annual premium equal to the Maximum Premium. After the Effective Time, the Surviving Corporation shall cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder and neither Parent nor the Surviving Corporation shall have any further obligations under this Section 5.08(b).
(c) The provisions of this Section 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Charter Documents, by Contract or otherwise (it being expressly agreed that the Indemnitees to whom this Section 5.08 applies shall be third party beneficiaries of this Section 5.08).
(d) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 5.08.
(e) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' Indemnitees’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its officersSubsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 5.08 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) The certificate of incorporation and the bylaws of the Surviving Corporation shall contain provisions with respect to indemnification, advancement of expenses and director exculpation that are at least as favorable as those set forth in the Certificate of Incorporation and the Bylaws of the Company as in effect at the date hereof (to the extent consistent with applicable Law), which provisions shall not be amended, repealed or otherwise modified for a period ending six (6) years after the Effective Time (and in the event that any Proceeding is pending or asserted or any claim is made during such period, until the final disposition of such Proceeding or claim) in any manner that would adversely affect the rights thereunder of individuals the persons who at any time prior to the Effective Time were directorsentitled to indemnification, officers advancement of expenses or employees exculpation under the certificate of incorporation and the bylaws of the CompanyCompany in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law, in which case Parent agrees, and will cause the Surviving Corporation, to use commercially reasonable efforts to make such changes to the certificate of incorporation and the bylaws as to have the least adverse affect on the rights of the individuals referenced in this Section 6.5.
(b) Parent shall cause to be maintained in effect for six years from From and after the Effective Time and until the current policies earlier of the directors' and officers' liability insurance maintained by the Company six (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous6) with respect to matters or events occurring prior to years after the Effective Time to and the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% expiration of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums any applicable statutes of such insurance coverage exceed such amountlimitation, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timeindemnify, Parent agrees that it will or will cause the Surviving Corporation to indemnify defend and hold harmless each the present and former director officers and officer directors of the CompanyCompany and its Subsidiaries (each, determined as of the Effective Time (the "together with such person’s heirs, executors or administrators, an “Indemnified Parties")Party”) against all losses, against any claims, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs or and expenses (including reasonable attorneys' fees’ fees and disbursements), judgments, fines, losses, claims, damages liabilities or liabilities (collectively, "Costs") incurred amounts in connection with any claim, action, suit, proceeding Proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and including all appeals thereof to which any Indemnified Party is or may become a party to by virtue of his or her service as a present or former director or officer of the Company or any of its Subsidiaries, and arising out of actual or pertaining alleged events, actions or omissions occurring or alleged to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent permitted under applicable law (and Parent shall, or shall cause provided in the certificate of incorporation and the bylaws of the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law the DGCL. Each Indemnified Party will be entitled to advancement of expenses in connection therewith (provided the person that any Person to whom expenses are advanced provides a customary shall have provided an undertaking complying with applicable law to repay such advances if it is ultimately finally determined that such person Person is not entitled to indemnification).
(c) Prior to the Effective Time, (1) subject to Parent’s prior written consent (not to be unreasonably withheld), the Company shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope no less favorable than the existing policy of the Company for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with its existing directors’ and officers’ liability policy insurer or an insurer with a comparable insurer financial strength rating as the Company’s existing directors’ and officers’ liability policy insurer; or (2) if Parent shall not have so consented or the Company shall not have obtained such tail policy, the Surviving Corporation will provide for a period of not less than six (6) years after the Effective Time to the directors and officers who are insured under the Company’s directors’ and officers’ insurance policy an insurance policy that provides coverage for events occurring at or prior to the Effective Time (the “D&O Insurance”) that is not less favorable than the existing policy of the Company or, if substantially equivalent insurance coverage is unavailable on commercially reasonable terms, the best reasonably available coverage; provided, however, that the Surviving Corporation shall not be required to pay an aggregate premium for the D&O Insurance in excess of $590,000; provided further, however, that if the annual premium of such coverage exceeds such amount, the Surviving Corporation shall use its commercially reasonable efforts to obtain a policy with the greatest coverage reasonably available for a cost not exceeding such amount. Parent will use commercially reasonable efforts to cause all such policies referred to in Section 6.5(c) to be maintained in full force and effect for their full terms, and cause all obligations thereunder to be honored by the Surviving Corporation.
(d) The obligations under this Section 6.5 shall not be terminated or modified after the Control Time in such a manner as to affect adversely any Indemnified Party to whom this Section 6.5 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.5 applies shall be express third-party beneficiaries of this Section 6.5). This Section 6.5 shall survive the consummation of the Merger and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(e) If the Surviving Corporation or any of its successors or assigns (1) 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 (2) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 6.5. The 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 any of its officers, directors or and employees, it being understood and agreed that the indemnification provided for in this Section 6.7 6.5 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) The Surviving Corporation’s certificate of incorporation and bylaws will contain provisions no less favorable with respect to exculpation from liabilities and indemnification of the present or former directors or officers than are currently provided in the Company’s Certificate of Incorporation and Bylaws, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals who at for a period of six years after the Effective Time were directorsClosing Date or unless such amendment, officers modification or employees of the Companyrepeal is required by applicable law.
(b) Parent shall cause to be maintained in effect for six years Without limiting any additional rights that any Person may have, from and after the Effective Time and for a period of six years after the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amountClosing Date, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Timewill, and Parent agrees that it will or will cause the Surviving Corporation to to, indemnify and hold harmless each present and former director and officer of the Company, determined (as of the Effective Time Time) and former officer and director of the Company and its subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Party” and collectively, the "“Indemnified Parties"”), against any all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and reasonable fees, costs or expenses (and expenses, including reasonable attorneys' fees)’ fees and disbursements, judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigationproceeding, whether civil, criminal, administrative or investigative, arising out of, pertaining to or in connection with the fact that the Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or any subsidiary, or of another entity if such service was at the request of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to for the Effective Timebenefit of the Company, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent Company or the Surviving Corporation, as applicable, is permitted to do so under applicable law (and Parent shallthe Certificate of Incorporation or Bylaws as at the date hereof. In the event of any such proceeding, each Indemnified Party will be entitled to advancement of expenses incurred in the defense of the proceeding from the Company or shall cause the Surviving Corporation toCorporation, also advance fees and expenses (including reasonable attorneys' fees) as incurred applicable, to the fullest same extent permitted under applicable law such Persons have the right to advancement of expenses from the Company as of the date of this Agreement pursuant to the Certificate of Incorporation and Bylaws (provided the person that any Person to whom expenses are advanced provides a customary shall have provided an undertaking complying with applicable law to repay such advances if it is ultimately finally determined that such person Person is not entitled to indemnification), and Parent shall cause Company and the Surviving Corporation to provide such advancement of expenses.
(dc) Nothing in this Agreement This Section 6.8 will survive the consummation of the Merger and, notwithstanding Section 10.4, is intended toto benefit, shall and will be construed enforceable by, any Indemnified Party (whether or not parties to this Agreement). If Parent 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 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 resulting from such consolidation or merger or (ii) transfers all or substantially all of its officersproperties and assets to any Person, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the applicable obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies6.8.
Appears in 1 contract
Samples: Merger Agreement (F5 Networks Inc)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six (6) years after the Effective Time, Parent agrees that it will or will shall cause the Surviving Corporation to (i) indemnify and hold harmless harmless, to the extent that the Surviving Corporation is permitted to indemnify under applicable law, each present and former person who is now or was prior to the date hereof an officer or director and officer of the Company, determined Company or the Company Subsidiaries and each person who is now or was prior to the date hereof serving as a fiduciary under or with respect to any employee benefit plan of the Effective Time Company or the Company Subsidiaries (within the "meaning of Section 3(3) of ERISA) (each, an “Indemnified Parties"), Person”) against any costs or expenses (including reasonable attorneys' fees), judgments, fines, and all losses, claims, damages or liabilities (collectivelydamages, "Costs") incurred liabilities, fees, expenses, judgments, fines and amounts paid in settlement in connection with any actual or threatened claim, action, suit, arbitration, proceeding or investigation, whether civilrelating to, criminal, administrative or investigative, arising out of of, acts or pertaining omissions occurring, or alleged to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring have occurred, at or prior to the Effective Time, whether asserted based in whole or claimed prior toin part on, at or arising in whole or in part out of, the fact that such person is or was an officer or director of the Company or the Company Subsidiaries, or a fiduciary under or with respect to any employee benefit plan of the Company or the Company Subsidiaries any costs or expenses and (ii) advance reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Indemnified Person in connection with matters for which such Indemnified Person may be eligible to be indemnified pursuant to Section 6.5(a)(i) within thirty (30) days after receipt by Parent or the Surviving Corporation of a written request for such advance (provided, that any advancement of expenses shall be conditioned upon the Surviving Corporation’s receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be ultimately determined by final judgment of a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified pursuant to this Section 6.5(a)). In the event of any such action, Parent and the Surviving Corporation shall cooperate with the Indemnified Person in the defense of any such action.
(b) From and after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation toshall (i) fulfill and honor, also advance fees in all respects, the obligations of the Company pursuant to any indemnification agreements of the Company or the Company Subsidiaries set forth in Section 6.5(b) of the Disclosure Schedule (the “Indemnification Agreements”) and any indemnification, exculpation or advancement of expenses provisions under the certificates of incorporations or bylaws (or comparable organizational documents) as in effect immediately prior to the date hereof, and (ii) neither the Indemnification Agreements nor, in any manner disadvantageous to any Indemnified Person, the indemnification, exculpation or advancement of expenses provisions under the articles of incorporations or bylaws shall be amended for a period of six (6) years from the Effective Time; provided, that such obligations shall be subject to any limitation imposed from time to time under applicable Law.
(c) For six (6) years after the Effective Time, the Surviving Corporation shall provide officers’ and directors’ liability, fiduciary liability and similar insurance (collectively, “D&O Insurance”) in respect of acts or omissions occurring prior to the Effective Time covering each Indemnified Person covered, as of the date of this Agreement, by the Company’s D&O Insurance policies on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date of this Agreement; provided, that, in satisfying its obligation under this Section 6.5(c), the Surviving Corporation shall not be obligated to pay annual premiums in the aggregate in excess of three hundred percent (300%) of the amount per annum the Company paid in its last full fiscal year, which such premium the Company hereby represents is as disclosed in Section 6.5(c) of the Disclosure Schedule. Notwithstanding the foregoing, at any time Parent or the Surviving Corporation may, and if directed by Parent at least twenty (20) business days prior to the Effective Time the Company shall, purchase a “tail” directors’ and officers’ liability insurance policy, covering the same persons and providing the same terms with respect to coverage and amount as aforesaid, and that by its terms shall provide coverage until the sixth (6th) annual anniversary of the Effective Time, and upon the purchase of such insurance (including reasonable attorneys' feesany such insurance as described in the following proviso) as incurred Parent’s and the Surviving Corporation’s obligations pursuant to the fullest extent permitted under applicable law provided first sentence of this Section 6.5(c) shall be deemed satisfied; provided, that the person to whom expenses are advanced provides premium paid for such tail policy, whether paid by Parent or the Surviving Corporation or the Company, shall not exceed a customary undertaking complying with applicable law to repay one-time premium of three hundred percent (300% ) of the amount per annum the Company paid in its last full fiscal year, and if the coverage thereunder costs more than three hundred percent (300%) of such advances if it is ultimately determined per annum amount, Parent or the Surviving Corporation or the Company, as the case may be, shall purchase the maximum amount of coverage that can be obtained for three hundred percent (300%) of such person is not entitled to indemnification)per annum amount.
(d) Nothing In the event of any Action for which indemnification may be sought pursuant to this Section 6.5, Parent shall have the right, subject to the applicable indemnification agreement for such Indemnified Party, to control, the defense thereof, and any counsel retained by the Indemnified Parties must be reasonably satisfactory to Parent. Each Indemnified Party shall cooperate with Parent and the Surviving Corporation in this Agreement is intended tothe defense of any such Action, shall furnish or cause to be construed to furnished records, documents, information and testimony and shall attend such conferences, discovery proceedings, hearings, trials or shall releaseappeals, waive or impair any as may be reasonably requested by Parent in connection therewith.
(e) The rights to directors' and officers' insurance claims of each Indemnified Person under any policy that is or has been in existence with respect to the Company or any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior 6.5 shall survive consummation of the Merger and are intended to or in substitution for any such claims under such policiesbenefit, and shall be enforceable by, each Indemnified Person.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Acceptance Time, Parent shall, and shall cause the Company or the Surviving Corporation (as the case may be) to, to the fullest extent permitted by Law (including to the fullest extent authorized or permitted by any amendments to or replacements of individuals who the TBCA adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors), indemnify, defend and hold harmless (and advance expenses from time to time as incurred to the fullest extent permitted by Law, provided the Person to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA and provides statements and reasonable documentation therefor) the present and former directors and officers of the Company and any Person acting as director, officer, trustee, fiduciary, employee or agent of another entity or enterprise (including any Company Benefit Plan) at the Effective Time were directors, officers or employees request of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms each an “Indemnified Party”) from and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any and all actual, documented costs or expenses (including reasonable attorneys' ’ fees, expenses and disbursements), judgments, fines, losses, claims, damages or damages, penalties, liabilities (collectively, "Costs") incurred and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative administrative, regulatory or investigative, arising out of, relating to, or in connection with, any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, including the approval of the Transaction Agreements and the Transactions or arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective TimeTransactions, whether asserted or claimed prior to, at or after the Effective Time; provided, that the Person to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any applicable standard of conduct required by the TBCA has been met. Any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable Law, the Company Charter, the Company Bylaws or a written Contract between an Indemnified Party and the Company or one of its Subsidiaries, as the case may be, shall be made by independent special legal counsel selected by the Board of Directors of the Surviving Corporation or a committee thereof in the manner prescribed by Section 00-00-000 of the TBCA, the fees of which counsel shall be paid by the Surviving Corporation.
(b) An Indemnified Party shall notify the Surviving Corporation in writing promptly upon learning of any claim, action, suit, proceeding, investigation or other matter in respect of which such indemnification may be sought. The Surviving Corporation shall have the right, but not the obligation, to assume and control the fullest extent defense of any act or omission covered under this Section 6.7 (each, a “Claim”) with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the applicable Indemnified Party; provided, however, that such Indemnified Party shall be permitted under applicable law (to participate in the defense of such Claim at his or her own expense; and provided, further, that if the Surviving Corporation assumes the defense then the Surviving Corporation shall use its reasonable best efforts to conduct a vigorous defense of such matter. Notwithstanding anything to the contrary in this Agreement, neither Parent nor the Surviving Corporation shall, and Parent shall cause the Surviving Corporation not to, settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.7 without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed, unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim, action, suit proceeding or investigation, and does not include an admission of fault or wrongdoing by any Indemnified Party, in which case, no such consent shall be required.
(c) Subject to the following sentence, the Company or the Surviving Corporation (or any successor), as the case may be, shall, and Parent shall cause the Company or the Surviving Corporation (or any successor), as the case may be, to purchase, at no expense to the beneficiaries, a six (6) year extended reporting period endorsement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability 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 of the Prior Agreement 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 first sentence of this Section 6.7(c), but subject to the second and last sentence of this Section 6.7(c), the Company shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding any of the foregoing, (i) in no event shall Parent or the Surviving Corporation be required to (or the Company be able to) expend for such policy an aggregate amount in excess of 300% of the annual premium currently payable by the Company, it being understood that if the premiums payable for such insurance coverage exceeds such amount, Parent and the Surviving Corporation shall be obligated to (or the Company may only) obtain a policy with the greatest coverage available for a cost equal to such amount.
(d) Following the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, also advance fees maintain in effect the provisions in the Company Charter and the Company Bylaws as of the date of the Prior Agreement providing for indemnification, advancement and reimbursement of expenses (including reasonable attorneys' fees) and exculpation of Indemnified Parties, as incurred applicable, with respect to the facts or circumstances occurring at or prior to the Effective Time, to the fullest extent permitted from time to time under applicable law provided Law, which provisions shall not be amended in a manner that would adversely affect the person to whom expenses are advanced provides a customary undertaking complying with rights thereunder of the Indemnified Parties, except as required by applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Law.
(de) If Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Parent shall cause proper provisions to be made prior to the consummation of any transaction of the type described in clause (i) or (ii) of this sentence so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.7.
(f) From and after the Effective Time, Parent and the Surviving Corporation shall not, directly or indirectly, amend, modify, limit or terminate the advancement and reimbursement of expenses, exculpation, indemnification provisions of the agreements listed in Section 6.7(f) of the Company Disclosure Schedule between the Company and any of the Indemnified Parties, or any such provisions contained in the Surviving Corporation charter or bylaws.
(g) This Section 6.7 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and the Surviving Corporation. The obligations of Parent under this Section 6.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party unless (i) such termination or modification is required by applicable Law or (ii) the affected Indemnified Party shall have consented in writing to such termination or modification. It is expressly agreed that each Indemnified Party shall be a third-party beneficiary of this Section 6.7, and entitled to enforce the covenants contained in this Section 6.7. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 6.7 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 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 6.7 shall be in addition to, and not in substitution for, any rights such Indemnified Parties may have under the Company Charter and the Company Bylaws, the certificate of incorporation and bylaws (or comparable organizational documents) of any of the Company’s Subsidiaries or the charter or bylaws of the Surviving Corporation or under any applicable Contracts, insurance policies or Laws and Parent shall, and shall cause the Surviving Corporation (or its assignees) to, honor and perform under all indemnification agreements entered into by the Company or any of its Subsidiaries that are listed in Section 6.7(f) of the Company Disclosure Schedule.
(h) 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 officersrespective Subsidiaries for any of their respective directors, directors officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fidelity National Financial, Inc.)
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder From and after the Effective Time, Parent shall cause the Surviving Corporation as its sole shareholder to exculpate and indemnify, defend, protect and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer, director, employee or agent (the "Indemnified Party") of individuals who the Company or any of its Subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including attorneys' 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 "Claim") to the extent that any such Claim is based on, or arises out of, (i) the fact that such person is or was a director, officer, employee or agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) this Agreement, or any of the transactions contemplated hereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing, or occurring prior to or at the Effective Time were directorsTime, officers regardless of whether such Claim is asserted or employees claimed prior to, at or after the Effective Time, to the full extent permitted under applicable Law or the Company's Certificate of Incorporation, By-laws or indemnification agreements in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any action or suit; provided, however, that the Surviving Corporation shall not be liable for or otherwise be required to indemnify an Indemnified Party with respect to any amounts paid in settlement of any Claims without the written consent of Surviving Corporation (which consent shall not be unreasonably withheld or delayed). Without limiting the foregoing, in the event any Indemnified Party becomes involved in any capacity in any Claim of the Companytype described above, then from and after the Effective Time, Parent shall cause the Surviving Corporation as its sole shareholder to periodically advance (such advancement to be mandatory rather than permissive) to such Indemnified Party its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. Any Indemnified Party wishing to claim indemnification under this Section 6.07, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation. 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 of interest or a potential conflict of interest on any significant issue between the positions of any two or more Indemnified Parties.
(b) Parent shall cause All rights to be maintained indemnification and all limitations of liability existing in favor of the Indemnified Party as provided under applicable Law or the Company's Certificate of Incorporation, by-laws or indemnification agreements in effect at the date hereof shall survive the Merger and shall continue in full force and effect, without any amendment thereto, for a period of six years from the Effective Time Time; provided, however, that in the event any Claim or Claims are asserted or made within such six-year period, all rights to indemnification in respect of any such Claim or Claims shall continue until disposition of any and all such Claims; provided further, however, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under applicable Law, the Company's Certificate of Incorporation or by-laws or such agreements, as the case may be, shall be made by independent legal counsel selected by the Indemnified Party and reasonably acceptable to Parent.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation as its sole shareholder to maintain in effect the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are not materially no less advantageousadvantageous to the insured parties) with respect to matters claims arising from or related to facts or events occurring prior to that occurred at or before the Effective Time to the extent availableTime; provided, however, that in no event Parent shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall not be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer make annual premium payments for such insurance to the extent such premiums exceed 200% of the Company, determined annual premiums paid as of the Effective Time date hereof by the Company for such insurance (such 200% amount, the "Indemnified PartiesMaximum Premium"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring . If such insurance coverage cannot be obtained at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shallall, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to maintain the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to most advantageous policies of directors' and officers' insurance claims under any policy that is or has been in existence obtainable for an annual premium equal to the Maximum Premium; provided further, if such insurance coverage cannot be obtained at all, Parent shall purchase all available run-off insurance policies with respect to pre-existing insurance in an amount that, together with all other insurance purchased pursuant to this Section 6.07(c), does not exceed the Maximum Premium. The Company acknowledges that policies of directors' and officers' liability insurance provided by National Indemnity Company upon the terms set forth in this Section 6.07(c) may be substituted for the current policies of directors' and officers' liability insurance maintained by the Company. The Company represents to Parent that the current annualized premium on current policies of directors' and officers' liability insurance maintained by the Company is no more than $142,700 in the aggregate.
(d) In the event the Company, the Surviving Corporation or Parent, or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its officersproperties and assets to any person, directors or employeesthen, it being understood and agreed in each such case, proper provision shall be made so that the indemnification provided for successors and assigns of the Company, the Surviving Corporation or Parent, as the case may be, shall assume the obligations set forth in this Section 6.7 is not prior to or in substitution for any such claims under such policies.6.07. This Section
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at From and after the Effective Time were Time, Newco shall cause the Surviving Corporation and the Surviving LLC to, and the Surviving Corporation and the Surviving LLC, shall indemnify, defend and hold harmless the present and former officers, directors, officers or employees and agents of the Company and ISN, respectively (each a "COVERED PERSON"), against all losses, expenses, claims, damages, liabilities or amounts ("LOSSES") that are paid in settlement (provided that, with respect to amounts paid in settlement, such settlement has been approved by Newco, 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 or ISN, as applicable, and arising out of actions or omissions occurring at or prior to the Effective Time, in each case to the full extent permitted under applicable Law and the Company's Articles of Incorporation and By-laws or ISN's Certificate of Formation and Limited Liability Company Agreement, as applicable, as in effect on the date of this Agreement. The Surviving Corporation or the Surviving LLC, as applicable, shall pay, when and as such expenses are incurred by a Covered Person, any expenses in advance of the final disposition of any such Claim to each Covered Person to the fullest extent permitted under applicable Law upon receipt from the Covered Person to whom expenses are advanced of any undertaking to repay such advances required under applicable Law. The Surviving Corporation or the Surviving LLC, as applicable, shall cooperate in the defense of any such matter.
(b) Parent Newco shall cause the Surviving Corporation and the Surviving LLC to be maintained keep in effect provisions in their respective Articles of Incorporation and By-Laws and Certificate of Formation and Limited Liability Company Agreement 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 applicable Law, 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 from after the Effective Time Time, Newco shall cause the Surviving Corporation and the Surviving LLC to maintain in effect the current policies of the directors' directors and officers' officers liability insurance (or similar policies) maintained by the Company (provided and ISN covering persons who are currently covered by any such policies with respect to actions or omissions occurring at or prior to the Effective Time to the extent that Parent may substitute therefor such policies are available; PROVIDED, that policies of at least the same coverage containing terms and conditions which are not materially no less advantageous) with respect to matters or events occurring prior advantageous to the Effective Time to the extent available; providedinsureds may be substituted therefor, howeverPROVIDED, FURTHER, that in no event shall Parent the Surviving Corporation or the Company Surviving LLC be required to expend more than an amount amounts for premiums per year equal to 200annum in excess of 150% of current the annual premiums paid by of the Company and ISN, as applicable, prevailing during the twelve-month period ended November 30, 1999 (which amounts under current policies are set forth on Schedule 6.7such annual premiums, the "MAXIMUM PREMIUM") to maintain or procure insurance coverage pursuant hereto; andto this Section 5.2, providedor, further that if the annual premiums cost of such insurance coverage exceed such amountexceeds the Maximum Premium, the Surviving Corporation shall maximum amount of coverage that can be obligated to obtain a policy with purchased for the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause the Surviving Corporation to indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification)Maximum Premium.
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to the Company or any The provisions of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior 5.2 shall survive the consummation of the Mergers and are expressly intended to or in substitution for any such claims under such policiesbenefit each of the Covered Persons.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder of individuals who at the Effective Time were directors, officers or employees of the Company.
(b) Parent shall cause to be maintained in effect for six years from the Effective Time the current policies of the directors' From and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will shall, and shall cause the Surviving Corporation to indemnify to, indemnify, defend and hold harmless harmless, to the fullest extent permitted under applicable Law, each present and current or former director and officer of the Company, Company (determined as of the Effective Time Time), in each case, when acting in such capacity or, while a director or officer of the Company, serving as a director, officer, member, trustee or fiduciary of another entity or enterprise, including a Plan, at the request or benefit of the Company (each, a “D&O Indemnified Party” and, collectively, the "“D&O Indemnified Parties"), ”) against any costs or expenses (including reasonable attorneys' fees’ fees and expenses), amounts paid in settlement, judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativewith, arising out of or pertaining otherwise related to any Legal Proceeding in connection with, arising out of or otherwise related to matters relating to their duties or actions in their capacity as officers and directors and existing or occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including actions to the fullest extent permitted under applicable law (enforce this provision or any other indemnification or advancement right of any D&O Indemnified Party, and Parent shall, or shall cause the Surviving Corporation to, shall also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided Law (upon receipt of appropriate undertakings in favor of Parent or the person to whom expenses are advanced provides a customary undertaking complying with applicable law Surviving Corporation to repay such advances advanced expenses if it is ultimately determined in a final and non-appealable judgment by a court of competent jurisdiction that such person is D&O Indemnified Party was not entitled to indemnificationbe indemnified pursuant to this sentence). In the event of any such Legal Proceeding, Parent and the Surviving Corporation shall cooperate with the D&O Indemnified Party in the defense of any such Legal Proceeding. For a period of six (6) years from the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the exculpation, indemnification and advancement of expenses equivalent to the provisions of the certificate of incorporation and bylaws of the Company as in effect immediately prior to the Effective Time with respect to acts or omissions occurring prior to the Effective Time and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Parties; provided that all rights to indemnification in respect of any claim made for indemnification within such period shall continue until the disposition of such action or resolution of such claim. The Surviving Corporation and its Subsidiaries as of the Effective Time shall (and Parent shall cause the Surviving Corporation and its Subsidiaries as of the Effective Time to) honor and fulfill in all respects the obligations of the Company and its Subsidiaries under any indemnification Contracts between any executive, officer or director and the Company in effect prior to the date of this Agreement that are set forth on Section 6.7(a) of the Company Disclosure Letter (and made available to Parent), and shall not amend, repeal or otherwise modify any such Contracts in any manner that would adversely affect in any respect the rights thereunder of any D&O Indemnified Parties.
(b) Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, purchase from the Company’s directors’ and officers’ liability and fiduciary liability insurance carriers as of the date of this Agreement or one or more insurance carriers with the same or better credit rating as such carrier, a six (6) year prepaid “tail” policy, with terms, conditions, retentions and limits of liability that are no less favorable to the insureds than the coverage provided under the Company’s existing policies of directors’ and officers’ liability insurance and fiduciary liability insurance (a true, correct and complete copy of which has been made available to Parent), with respect to matters arising on or before the Effective Time (including in connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation; provided that the Company shall not pay, and the Surviving Corporation shall not be required to pay, in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of such “tail” policy. If the Company or the Surviving Corporation for any reason fail to obtain such “tail” insurance policies prior to or as of the Effective Time, Parent shall, for a period of six (6) years from the Effective Time, cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company as of the date of this Agreement with the Company’s directors’ and officers’ liability and fiduciary liability insurance carriers as of the date of this Agreement or one or more insurance carriers with the same or better credit rating as such carrier with respect to matters arising on or before the Effective Time; provided that after the Effective Time, Parent shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by the Company prior to the date of this Agreement in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as practicable for such amount.
(c) Notwithstanding anything herein to the contrary, if any D&O Indemnified Party notifies the Surviving Corporation on or prior to the sixth (6th) anniversary of the Effective Time that a claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) has been made against such D&O Indemnified Party, the provisions of this Section 6.7 shall continue in effect with respect to such claim, action, suit, proceeding or investigation until the final disposition thereof.
(d) In the event that Parent or the Surviving Corporation (or any of its successors or assigns) (i) consolidates with or merges into any other Person and is not 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, in each such case, proper provision shall be made so that the successors and assigns of Parent and the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 6.7.
(e) This Section 6.7 shall survive the consummation of the Merger and is intended to benefit, and shall be enforceable by, each of the D&O Indemnified Parties and their respective heirs and legal representatives, and shall not be terminated or modified in such a manner as to adversely affect in any material respect any D&O Indemnified Party without the written consent of such affected D&O Indemnified Party. The rights provided under this Section 6.7 shall not be deemed to be exclusive of any other rights to which any D&O 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 any of its officers, directors or employees, it being understood and agreed that the indemnification provided for in this Section 6.7 is not prior to or in substitution Subsidiaries for any such claims under such policiesof their respective directors, officers or other employees.
Appears in 1 contract
Directors’ and Officers’ Indemnification and Insurance. (a) thereunder Without limiting any additional rights that any director, officer, trustee, or fiduciary under or with respect to any employee benefit plan (within the meaning of individuals who at Section 3(3) of ERISA) may have under any employment or indemnification agreement or under the Effective Time were directorsCompany’s Certificate of Incorporation, officers its Bylaws or employees this Agreement or, if applicable, similar organizational documents or agreements of any of the Company.
(b) Parent shall cause to be maintained in effect for six years ’s Subsidiaries, from the Effective Time the current policies of the directors' and officers' liability insurance maintained by the Company (provided that Parent may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less advantageous) with respect to matters or events occurring prior to the Effective Time to the extent available; provided, however, that in no event shall Parent or the Company be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company (which amounts under current policies are set forth on Schedule 6.7) to maintain or procure insurance coverage pursuant hereto; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) For six years after the Effective Time, Parent agrees that it will or will cause and the Surviving Corporation to (the “Indemnitors”) shall: (i) indemnify and hold harmless each present and former director and person who is at the date hereof or during the period from the date hereof through the Closing Date serving as a director, officer or trustee, or as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) of the CompanyCompany or any of its Subsidiaries (collectively, determined as of the Effective Time (the "“Indemnified Parties")”) to the fullest extent authorized or permitted by applicable law, against as now or hereafter in effect, in connection with any costs or expenses (including reasonable attorneys' fees), Claim and any judgments, fines, lossespenalties and amounts paid in settlement (including all interest, claims, damages assessments and other charges paid or liabilities (collectively, "Costs") incurred payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom, and (ii) promptly pay on behalf of or, within thirty (30) days after any claimrequest for advancement, actionadvance to each of the Indemnified Parties, suitto the fullest extent authorized or permitted by applicable law, proceeding as now or investigationhereafter in effect, any Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim, including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security. The indemnification and advancement obligations of the Indemnitors pursuant to this Section 7.13(a) shall extend to acts or omissions occurring at or before the Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall continue as to a person who continues to be or who has ceased to be a director, officer or trustee of the Company or any of its Subsidiaries or fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) of the Company or any of its Subsidiaries after the date hereof and shall inure to the benefit of such person’s heirs, executors and personal and legal representatives. As used in this Section 7.13(a): (A) the term “Claim” means any threatened, asserted, pending or completed Action, whether instituted by any party hereto, any Governmental Entity or any other party, that any Indemnified Party in good faith believes might lead to the institution of any such Action, whether civil, criminal, administrative administrative, investigative or investigativeother, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters relating that relate to their duties such Indemnified Party in his or actions in their her capacity as officers and directors and existing a director, officer or occurring trustee of the Company or any of its Subsidiaries or fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) or any other person at or prior to the Effective Time, whether asserted or claimed prior to, Time at or after the Effective Time, to the fullest extent permitted under applicable law (and Parent shall, or shall cause the Surviving Corporation to, also advance fees and expenses (including reasonable attorneys' fees) as incurred to the fullest extent permitted under applicable law provided the person to whom expenses are advanced provides a customary undertaking complying with applicable law to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors' and officers' insurance claims under any policy that is or has been in existence with respect to request of the Company or any of its officersSubsidiaries, directors and (B) the term “Expenses” means reasonable attorneys’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or employeesincurred in connection with investigating, it defending, being understood and agreed that the a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Claim for which indemnification provided for in is authorized pursuant to this Section 6.7 is 7.13(a), including any Action relating to a claim for indemnification or advancement brought by an Indemnified Party. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim in respect of which indemnification has been or could be sought by such Indemnified Party hereunder unless (i) such settlement, compromise or judgment includes an unconditional release of such Indemnified Party from all liability arising out of such Claim and does not prior to contain any continuing restrictions on such Indemnified Party or in substitution for any (ii) such claims under such policiesIndemnified Party otherwise consents thereto.
Appears in 1 contract
Samples: Merger Agreement (Gtsi Corp)
