Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) shall maintain for the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance. (b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiary. (c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreements. (d) This Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time.
Appears in 2 contracts
Samples: Acquisition Agreement (New Gold Inc. /FI), Acquisition Agreement (New Gold Inc. /FI)
Directors’ and Officers’ Insurance and Indemnification. (a) From The Certificate of Incorporation and after the Effective TimeBylaws of the Surviving Corporation shall contain the respective provisions that are set forth, as of the Company (or its successor) shall maintain for date of this Agreement, in Article Twelfth of the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers Certificate of Incorporation of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers Article 5 of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers Bylaws of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who, immediately who at or at any time prior to the Effective Time were entitled to indemnification thereunder unless such modification shall be required by law.
(b) Parent hereby agrees (i) to assume, as of the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the all obligations of the Company or under Article Twelfth of the Certificate of Incorporation of the Company Subsidiary and Article 5 of the Bylaws of the Company, and (ii) to pay all amounts that become due and payable under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarysuch provisions.
(c) The Offeror Surviving Corporation and Parent shall ensure that honor and fulfill in all amounts payable under all employment and other agreements in respect of or upon a change of control respects the obligations of the Company set out in the Disclosure Letter are paid in accordance pursuant to indemnification agreements with the provisions of such agreementsCompany's directors and officers existing at or before the Effective Time.
(d) The Surviving Corporation shall use commercially reasonable efforts to maintain in effect for six years from the Effective Time directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy on terms comparable to such existing insurance coverage (including coverage amounts); PROVIDED, HOWEVER, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 6.5 more than an amount per year equal to 150% of current annual premiums paid by the Company for such insurance (which premiums the Company represents and warrants to be $61,000 in the aggregate) and PROVIDED FURTHER that if the annual premiums exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(e) This Section 7.6 shall survive the termination consummation of this Agreement if such termination occurs following the Effective TimeOffer and the Merger, is intended to benefit the Company, the Surviving Corporation and each indemnified party, shall be binding, jointly and severally, on all successors and assigns of the Surviving Corporation and Parent, and shall be enforceable by the indemnified parties.
(f) After the date of consummation of the Offer, neither Parent nor the Purchaser shall take any action that would cause the Company not to honor in accordance with their terms, any employment, severance, consulting, change of control and other compensation contracts between the Company or any of its Subsidiaries and any current or former director, officer or employee thereof listed on SCHEDULE 4.11(B).
Appears in 2 contracts
Samples: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)
Directors’ and Officers’ Insurance and Indemnification. (a) From HoldCo shall, and shall cause the Surviving Entity and each of the Company’s Subsidiaries to, for a period of six (6) years after the Effective TimeTime (and until such later date as of which any matter covered hereby commenced during such six (6) year period shall have been finally disposed of), honor and fulfill in all respects the obligations of such Person to the fullest extent permissible under applicable Law, the Company Governing Documents and corresponding organizational or governing documents of such Subsidiary, in each case, as in effect on the date hereof and under any indemnification or other similar agreements in effect on the date hereof (the “Indemnification Agreements”), to the individuals entitled to indemnification, exculpation and/or advancement of expenses under such Company Governing Documents, other organizational or its successor) shall maintain for the period from the Effective Time until six years thereafter on a "trailing" governing documents or "run-off" basis, a directors' and officers' insurance policy for all Indemnification Agreements (including each present and former directors director and officers officer of the Company and its Subsidiaries) (the Company Subsidiary, covering claims in respect “Covered Persons”) arising out of acts or relating to actions or omissions in their capacity as directors such occurring at or officers of the Company occurring prior to the Effective Time made prior Time, including actions or omissions in connection with the consideration, negotiation and approval of this Agreement and the Transactions or arising out of or pertaining to the Transactions and actions to enforce this provision or within any other indemnification or advancement right of any Covered Persons.
(b) For a period of six (6) years from and after the Effective TimeTime (and until such later date as of which any matter covered hereby commenced during such six (6) year period shall have been finally disposed of), the organizational and governing documents of the Surviving Entity and each of the Company’s Subsidiaries shall, to the extent consistent with applicable Law, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of Covered Persons for periods prior to and including the Effective Time than are currently set forth in the Company Governing Documents and the organizational and governing documents of each of the Company’s Subsidiaries in effect on the date hereof (as the case may be) and shall not contain any provision to the contrary. The Indemnification Agreements with Covered Persons 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 and after the Effective Time (and until such later date as of which any matter covered hereby commenced during such six (6) year period shall have been finally disposed of), HoldCo shall cause to be maintained, at no expense to the beneficiaries, in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided that HoldCo may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions comparable which are no less advantageous to those applicable any beneficiary thereof) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, that HoldCo shall not be obligated to make annual premium payments for such insurance to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200extent such premiums exceed 300% of the current annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Base Premium”); provided, further, if such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Base Premium, HoldCo shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Base Premium. In addition, if the Company in its sole discretion elects, by giving written notice to HoldCo at least five (5) Business Days prior to the Effective Time, then, in lieu of the foregoing insurance.
(b) From and after , effective as of the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company purchase a directors’ and the Company Subsidiary (officers’ liability insurance “tail” or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified “runoff” insurance program for a period of six (6) years from and after the Effective Time in providing at least the same coverage and amounts containing terms and conditions which are no less advantageous to any manner that would adversely affect beneficiary thereof than the rights thereunder current policies of individuals who, immediately directors’ and officers’ liability insurance maintained by the Company with respect to claims arising from or related to facts or events which occurred at or prior to the Effective Time, were directors or officers of ; provided that the annual premium shall not exceed the Base Premium. In the event that the Company elects to purchase such a “tail” or “runoff” insurance program, the Company Subsidiary, Surviving Entity shall (and HoldCo shall cause the Company shall ensure that the Surviving Entity to) maintain such “tail” or “runoff” insurance program in full force and effect and continue to honor their respective obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsthereunder.
(d) This If HoldCo or the Surviving Entity or any of their respective successors or assigns (i) shall consolidate or amalgamate with or merge into any other corporation or entity and shall not be the continuing, merged or surviving company 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 HoldCo or the Surviving Entity shall assume all of the obligations set forth in this Section 7.6.
(e) The provisions of this Section 7.6 shall survive the termination Merger. The Covered Persons (and their successors and heirs) shall be third party beneficiaries of this Agreement if such termination occurs following the Effective TimeSection 7.6. All rights under this Section 7.6 are intended to be in addition to and not in substitution of other rights any Covered Persons may otherwise have.
Appears in 2 contracts
Samples: Merger Agreement (New Frontier Public Holding Ltd.), Merger Agreement (New Frontier Health Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) Surviving Corporation shall, and Parent shall maintain for cause the period from Surviving Corporation to, indemnify and hold harmless, and advance expenses to, the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring individuals who at any time prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or any of its present or former Subsidiaries (the Company Subsidiary“Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) to the fullest extent permitted by Law and by the Company shall ensure that the obligations by-laws of the Company or any applicable Subsidiary. After the Effective Time, Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) fulfill and honor, to the extent permitted by applicable Law, all rights to exculpation, advancement of expenses or indemnification for acts or omissions occurring prior to the Effective Time existing as of the Effective Time in favor of present or former directors and officers of the Company, its Subsidiaries or any of their predecessors in their capacity as officers or directors, and the heirs, executors, trustees, fiduciaries and administrators of such officer or director (each, a “D&O Indemnitee”), as provided in the Company’s or each of its Subsidiaries’ respective certificate of incorporation and by-laws (or comparable organizational or governing documents) or in any agreement, which shall survive the transactions contemplated by this Agreement and shall continue in full force and effect in accordance with their terms. After the Effective Time, Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) fulfill and honor such obligations to the extent permitted by applicable Law. In addition, for a period of six (6) years following the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, cause the certificate of incorporation and by-laws (and other similar organizational documents) of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, advancement of expenses and exculpation of the D&O Indemnities for actions prior to the Effective Time that are at least as favorable as the indemnification, advancement of expenses and exculpation provisions contained in the certificate of incorporation or by-laws (or other similar organizational documents) of the Company Subsidiary under and its Subsidiaries immediately prior to the Effective Time, and during such six (6) year period, such provisions shall not be amended, repealed or otherwise modified with respect to the D&O Indemnities for actions taken prior to the Effective Time in any indemnification agreements listed respect, except as required by applicable Law.
(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, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of at least six (6) years from and after the Disclosure Letter between Effective Time with respect to any claim related to any period of time at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current D&O 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; provided, that in no event shall the Company pay, and in no event shall Parent or the Surviving Corporation be required to pay, an aggregate annual premium for any such insurance policy or policies in excess of 250% of the annual premium currently paid by the Company for such coverage (the “Maximum Amount”); provided, further, that if the annual premium of such policy exceeds the Maximum Amount, Parent shall cause the Surviving Corporation to obtain a policy with the greatest coverage available for a cost not exceeding such amount. If the Company or the Company Subsidiary Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Surviving Corporation shall continue to maintain in effect, for a period of at least six (6) years from and its directors and officers continue after the Effective Time, the D&O 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 D&O 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 (ii) Parent will provide, or cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the D&O Indemnitees who are assumed byinsured 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 D&O Insurance carrier, that is no less favorable than the existing policy of the Company or, if applicablesubstantially equivalent insurance coverage is unavailable, any successor the best available coverage; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of two hundred fifty percent (250%) of the annual premium currently paid by the Company for such insurance; and provided further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Company or Effective Time, for a cost not exceeding such amount. Section 7.6(b) of the Company SubsidiaryDisclosure Schedule sets forth in reasonable detail a description of the Company’s D&O Insurance existing as of the date hereof, including the annual premium for such D&O Insurance.
(c) The Offeror This Section 7.6 is intended to benefit the Indemnified Parties and the D&O Indemnitees, and shall ensure that all amounts payable under all employment be enforceable by, each Indemnified Party or D&O Indemnitee, his or her heirs and other agreements in respect of his or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsher representatives.
(d) This In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger, or (ii) transfers or conveys 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, assigns and transferees of Parent or the Surviving Corporation, or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time7.6.
Appears in 2 contracts
Samples: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Directors’ and Officers’ Insurance and Indemnification. (a) From For six (6) years from and after the Effective Time, Parent shall cause the Surviving Company (or its successor) shall maintain for to indemnify and hold harmless the period from individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" were directors or "run-off" basisofficers of the Company or any of the Company Subsidiaries (the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), a directors' judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) to the same extent such Persons are currently entitled to indemnification in such capacities under the organizational documents of the Company or such Company Subsidiary, as applicable, and officers' insurance policy applicable Law, and Parent shall, and shall cause the Surviving Company to, promptly advance expenses as incurred to such Persons to the same extent such Persons are currently entitled to such advancement in such capacities thereunder. Each of Parent and each Merger Sub agrees that all rights to exculpation or indemnification for all present and former acts or omissions occurring prior to the Effective Time existing as of the Effective Time in favor of directors and officers of the Company and the Company SubsidiarySubsidiaries in such capacities and the heirs, covering claims executors, trustees, fiduciaries and administrators of such officer or director (each, a “D&O Indemnitee”), as provided in respect of acts the Company’s or omissions in their capacity as directors or officers each of the Company occurring Subsidiaries’ respective certificate of incorporation and bylaws (or comparable organizational or governing documents) or in any indemnification agreement, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect in accordance with their terms. After the Effective Time, the Surviving Company shall (and Parent shall cause the Surviving Company to) fulfill and honor such obligations to the maximum extent permitted by applicable Law. In addition, for a period of six (6) years following the Effective Time, Parent shall, and shall cause the Surviving Company and its Subsidiaries to, cause the limited liability company agreement (and other similar organizational documents) of the Surviving Company and its Subsidiaries to contain provisions with respect to indemnification, advancement of expenses and exculpation that are at least as favorable as the indemnification, advancement of expenses and exculpation provisions contained in the certificate of incorporation or bylaws (or other similar organizational documents) of the Company and the Company Subsidiaries immediately prior to the Effective Time, and during such six-year period, such provisions shall not be amended, repealed or otherwise modified in any respect, except as required by applicable Law.
(b) Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Company as of the Effective Time to obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time made prior from an insurance carrier with the same or better credit rating as the Company’s current D&O 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. If the Company or within the Surviving Company for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Surviving Company 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 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 D&O 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 (ii) Parent will provide, or cause the Surviving Company to provide, for a period of not less than six (6) years after the Effective Time, on terms and conditions the D&O Indemnitees who are insured under the Company’s D&O Insurance with comparable to those applicable 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 directors and officers D&O Insurance carrier, that is no less favorable than the existing policy of the Company or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that Parent and the Surviving Company Subsidiary, provided that in no event shall 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 300% of the current annual premiums premium currently paid by the Company for such insurance.
(b) From ; and after provided further that if the Effective Timeannual premiums of such insurance coverage exceed such amount, Parent or the Surviving Company shall ensure that articlesbe obligated to obtain a policy with the greatest coverage available, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately matters occurring prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiaryfor a cost not exceeding such amount.
(c) The Offeror This Section 6.6 is intended to benefit the Indemnified Parties and the D&O Indemnitees, and shall ensure that be binding on all amounts payable under all employment successors and assigns of Parent, each Merger Sub, the Company and the Surviving Company. Parent hereby guarantees the payment and performance by the Surviving Company of the indemnification and other agreements in respect of or upon a change of control obligations pursuant to this Section 6.6 and limited liability company agreement of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsSurviving Company.
(d) This In the event that Parent, the Surviving Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of Parent or the Surviving Company or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.6.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Sungard Capital Corp Ii)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Parent and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, (i) honor any existing indemnification agreements to which the Company is a party and (or its successorii) shall maintain for indemnify and hold harmless the period from individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as were directors or officers of the Company or any of its present or former Subsidiaries or corporate parents (the “Indemnified Parties”) against any costs or expenses (including reasonable attorney’s fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time made prior to or within six years after (including the Effective Time, on terms and conditions comparable to those applicable transactions contemplated by this Agreement) to the current directors fullest extent permitted by Law, and officers of the Company Parent and the Company SubsidiarySurviving Corporation shall, provided that in no event and Parent shall cause the Company be required Surviving Corporation to, promptly advance expenses as incurred to expend more than an amount per year equal to 200% the fullest extent permitted by Law. The certificate of the current annual premiums paid by the Company for such insurance.
(b) From incorporation and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) Surviving Corporation shall contain the provisions with respect to indemnification and advancement of expenses set forth in the Company's or certificate of incorporation and by-laws of the Company Subsidiary's current articles and/or by-lawson the date of this Agreement, which provisions thereafter shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties.
(b) Parent and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect for not less than six (6) years from the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and the Company’s Subsidiaries for the Indemnified Parties and any other employees, agents or other individuals whootherwise covered by such insurance policies prior to the Effective Time (collectively, immediately the “Insured Parties”) with respect to matters occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement); provided that Parent and the Surviving Corporation may substitute therefor policies of substantially the same coverage containing terms and conditions that are no less advantageous to the Insured Parties. Alternatively, at Parent’s option, Parent may cause the Surviving Corporation to purchase at or after the Effective Time, or at the Company’s option (subject to Parent’s consent, which consent shall not be unreasonably withheld), the Company may purchase prior to the Effective Time, were directors or officers a six-year prepaid “tail” policy 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 matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such “tail” prepaid policy has been obtained by the Company Subsidiaryprior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Company Surviving Corporation, and no other party shall ensure that the obligations of the Company have any further obligation to purchase or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarypay for insurance hereunder.
(c) The Offeror Parent shall ensure pay all reasonable expenses, including reasonable attorneys’ fees, that all amounts payable under all employment may be incurred by any Indemnified Party in enforcing the indemnity and other agreements obligations provided in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsthis Section 6.6.
(d) This Section 7.6 6.6 is intended to benefit the Insured Parties and the Indemnified Parties, and shall survive be binding on all successors and assigns of Parent, Sub, the termination Company and the Surviving Corporation. Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other obligations pursuant to this Agreement if Section 6.6 and the certificate of incorporation and by-laws of the Surviving Corporation.
(e) In the event that Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving Person of such termination occurs following consolidation or merger or (ii) transfers or conveys a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the Effective Timesuccessors, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 6.6.
Appears in 2 contracts
Samples: Merger Agreement (RenPac Holdings Inc.), Merger Agreement (Pactiv Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Parent shall, and shall cause the Company (or its successor) shall maintain for Surviving Corporation to, indemnify and hold harmless the period from individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as were directors or officers of the Company or any of its present or former Subsidiaries or corporate parents (the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time made prior to or within six years after (including the Effective Time, on terms and conditions comparable to those applicable transactions contemplated by this Agreement) to the current directors fullest extent permitted by Law, and officers Parent shall, and shall cause the Surviving Corporation to, promptly advance expenses as incurred to the fullest extent permitted by Law. The articles of incorporation and bylaws of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) Surviving Corporation shall contain the provisions with respect to indemnification and advancement of expenses set forth in the Company's or articles of incorporation and bylaws of the Company Subsidiary's current articles and/or by-lawson the date of this Agreement, which provisions shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties, unless such modification is required by Law.
(b) Parent shall cause to be maintained in effect for not less than six (6) years from the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and the Company’s Subsidiaries for the Indemnified Parties and any other employees, agents or other individuals who, immediately otherwise covered by such insurance policies prior to the Effective TimeTime (collectively, were directors the “Insured Parties”) with respect to matters occurring at or officers prior to the Effective Time (including the transactions contemplated by this Agreement); provided that in lieu of the Company purchase of such insurance by Parent or the Company SubsidiarySurviving Corporation, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and may at its directors and officers continue in place or are assumed by, if applicable, any successor option prior to the Company or the Company SubsidiaryEffective Time purchase a six-year run-off (Extended Reporting Period) program for directors’ and officers’ liability insurance and fiduciary liability insurance.
(c) The Offeror This Section 6.6 is intended to benefit the Insured Parties and the Indemnified Parties, and shall ensure that be binding on all amounts payable under all employment successors and assigns of Parent, Sub, the Company and the Surviving Corporation. Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other agreements in respect obligations pursuant to this Section 6.6 and the articles of or upon a change of control incorporation and bylaws of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsSurviving Corporation.
(d) This In the event that Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.6.
Appears in 2 contracts
Samples: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless to the fullest extent permitted by Law the present and former officers and directors of the Company and its Subsidiaries against all losses, claims, damages and liabilities in respect of acts or omissions occurring at or prior to the Effective Time. Parent shall cause the Surviving Corporation (and its successors) to establish and maintain provisions in its certificate of incorporation and bylaws (or other comparable organizational documents) concerning the indemnification and exoneration of the Company's former and present officers, directors, employees and agents that are no less favorable to those persons than the provisions of the Company's certificate of incorporation and bylaws. Parent shall, and shall cause the Surviving Corporation to, fulfill and honor in all respects all rights to indemnification, advancement of litigation expenses and limitation of personal liability existing in favor of the directors, officers and employees of the Company and its successor) shall maintain for Subsidiaries under the period from provisions existing on the date of this Agreement in any indemnification agreements between the Company and such individuals and all such provisions shall, with respect to any matter existing or occurring at or prior to the Effective Time until six years thereafter on a "trailing" (including the transactions contemplated by this Agreement), survive the Effective Time, and, as of the Effective Time, Parent and the Surviving Corporation shall assume all obligations of the Company in respect thereof as to any claim or "run-off" basisclaims asserted prior to or after the Effective Time.
(b) Prior to the Closing, Parent shall obtain and pay for a directors' and officers' liability insurance policy tail policy, including employment practices and securities liability, for all present the Company (and former the Surviving Corporation as successor in interest) (the "D&O Policy") with a term of six years following the date of the Closing and providing for coverage and amounts, and containing terms and conditions, which are no less advantageous to the directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to than the current directors policies of directors' and officers of officers' and liability insurance maintained by the Company and the Company SubsidiaryCompany; provided, provided however, that in no event shall will Parent or the Company Surviving Corporation be required to expend more than an amount per year equal to in excess of 200% of the current annual premiums premium currently paid by the Company for such insurance.
(b) From coverage for the purchase of such tail policy, and after if the Effective Timecost for such coverage is in excess of such amount, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's Parent or the Company Subsidiary's current articles and/or by-lawsSurviving Corporation, which provisions as the case may be, shall not, except only be required to the extent required by applicable Laws, be amended, repealed or otherwise modified maintain such coverage as is available for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarysuch amount.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of this Section 6.8 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such agreementsPerson may have by contract or otherwise.
(d) This Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (QRS Corp), Merger Agreement (QRS Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From Parent and after Purchaser agree that all rights to exculpation, indemnification and advancement of expenses from the Company or any of its Subsidiaries now existing in favor of the current or former directors, officers or employees, as the case may be, of the Company or its Subsidiaries as provided in their respective certificates of incorporation or by-laws or other organization documents or in any agreement shall, solely with respect to acts or omissions prior to the Effective Time, survive the Company (or its successor) Transactions and shall maintain for the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' continue in full force and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified for effect. For a period of six years from the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect, solely with respect to acts or omissions prior to the Effective Time, the exculpation, indemnification and advancement of expenses provisions of the Company’s and any Company Subsidiary’s certificates of incorporation and by-laws or similar organization documents as in effect immediately prior to the Effective Time or in any indemnification agreements of the Company or its Subsidiaries with any of their respective directors, officers or employees as in effect immediately 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 individuals whothereunder, immediately solely with respect to acts or omissions prior to the Effective Time, of any individuals who at the Effective Time were current or former directors, officers or employees of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”); provided, however, that all rights to indemnification in respect of any action pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such claim. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor, in accordance with their respective terms, each of the covenants contained in this Section 6.5.
(b) For a period of six years from the Effective Time, Parent shall cause to be maintained in effect directors’ and officers’ liability insurance and fiduciary liability insurance coverage with respect to matters arising at or before the Effective Time providing coverage no less favorable to the directors or and officers of the Company or and its Subsidiaries than the coverage provided by such policies on the date of this Agreement. At Parent’s option, in lieu of such insurance, following the Effective Time the Surviving Corporation may purchase a six-year prepaid “tail” policy 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 Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place Subsidiaries with respect to matters arising at or are assumed bybefore the Effective Time. If such “tail” policy is obtained, if applicable, no party shall have any successor further obligation to the Company purchase or the Company Subsidiarypay for any insurance pursuant to this Section 6.5.
(c) The Offeror Parent shall ensure pay all expenses, including reasonable attorneys’ fees, that all amounts payable under all employment and other agreements may be incurred by any Indemnified Party in respect of or upon a change of control of successfully enforcing the Company set out obligations provided in the Disclosure Letter are paid in accordance with the provisions of such agreements.this Section 6.5
(d) This The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the certificates of incorporation or by-laws or other organization documents of the Company or any of its Subsidiaries or the Surviving Corporation, any other indemnification arrangement, the DGCL or otherwise. The provisions of this Section 7.6 6.5 shall survive the termination consummation of the Transactions and expressly are intended to benefit, and are enforceable by, each of the Indemnified Parties.
(e) In the event Parent, the Surviving Corporation or any of their respective successors or assigns transfers all or substantially all of its properties and assets to any person it shall make proper provision so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the respective obligations of Parent or the Surviving Corporation set forth in this Agreement if such termination occurs following the Effective TimeSection 6.5.
Appears in 2 contracts
Samples: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) shall maintain for the period from After the Effective Time until six years thereafter on a "trailing" the Surviving Corporation (or "run-off" basisany successor to the Surviving Corporation) shall indemnify, a directors' defend and officers' insurance policy for all hold harmless the present and former officers and directors and officers of the Company and its Subsidiaries (each an "Indemnified Party") against all losses, claims, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that any such settlement is effected with the Company Subsidiarywritten consent of the Surviving Corporation, covering claims in respect such consent not to be unreasonably withheld)) arising out of acts actions or omissions occurring at or prior to the Effective Time to the full extent permitted under North Carolina law, such right to include advancement of expenses incurred in their capacity as the defense of any action or suit; provided that any determination required to be made with respect to whether such Indemnified Party is entitled to indemnity hereunder (including without limitation whether, with respect to the indemnification of such Indemnified Party by the Surviving Corporation, an Indemnified Party's conduct complies with the standards set forth under the NCBCA), shall be made at the Surviving Corporation's expense by independent counsel mutually acceptable to the Surviving Corporation and the Indemnified Party; provided further, that nothing herein shall impair any rights or obligations of any present or former directors or officers of the Company occurring prior to Company.
(b) The Surviving Corporation shall maintain the Company's existing officers' and directors' liability insurance covering claims arising from facts or events which occurred before the Effective Time made prior to or within ("D&O Insurance"), for a period of not less than six years after the Effective TimeDate; provided, on that the Surviving Corporation may substitute therefor policies of substantially similar coverage and amounts containing terms and conditions comparable no less favorable to those applicable to such former directors or officers; provided, further, if the current directors and officers of existing D&O Insurance expires, is terminated or canceled during such period, the Company and the Company SubsidiarySurviving Corporation will obtain substantially similar D&O Insurance; provided further, provided however, that in no event shall the Company Surviving Corporation be required to expend more than an amount per year equal to 200pay aggregate annual premiums for insurance under this Section in excess of 150% of the current aggregate annual premiums paid by the Company in 1998 on an annualized basis for such insurancepurpose and, in the event that the annual premium for insurance required to be obtained hereunder shall exceed such amount, the Surviving Corporation shall maintain as much of such insurance as may be maintained for such amount.
(bc) From and after To the Effective Timeextent permitted by applicable law, the Company shall ensure that articles, by-laws and/or other constating documents articles of incorporation and the bylaws of the Company and the Company Subsidiary (or their successors) Surviving Corporation for so long as it continues to exist shall contain the provisions with respect to advancement of expenses, indemnification and exculpation from liability set forth in the Company's or Articles of Incorporation and Bylaws of the Company Subsidiary's current articles and/or by-lawson the date of this Agreement, which provisions shall not, except to the extent required by applicable Laws, 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, immediately who on or prior to the Effective Time, Time were directors or officers of the Company or the Company SubsidiaryCompany, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of unless such agreementsmodification is required by law.
(d) This In the event the Surviving Corporation or any of its 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 its properties and assets to any person, then, and in each case, proper provision shall be made so that the successors and assigns of the Surviving Corporation honor the indemnification obligations set forth in this Section 7.6 5.9. The Surviving Corporation shall survive honor the termination indemnification provisions of Section 5.9 of the Agreement and Plan of Merger dated December 17, 1996, as amended, by and among the Company, ASI Acquisition Corp. and American Studios, Inc.
(e) The obligations of the Surviving Corporation under this Section 5.9 shall not be terminated, modified or assigned in such a manner as to adversely affect any director or officer to whom this Section 5.9 applies without the consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 5.9 applies shall be third-party beneficiaries of this Agreement if such termination occurs following the Effective TimeSection 5.9).
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) Parent shall, or shall cause the Surviving Corporation to, honor and fulfill in all respects the obligations of the Company to the fullest extent permissible under applicable Law, under the Company Governing Documents in effect on the date hereof and under any indemnification or other similar agreements in effect on the date hereof (the “Indemnification Agreements”) to the individuals covered by such Company Governing Documents or Indemnification Agreements (the “Covered Persons”) arising out of or relating to actions or omissions in their capacity as such occurring at or prior to the Effective Time, including in connection with the approval of this Agreement and the Transactions.
(b) For a period of six (6) years after the Effective Time, 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 Covered Persons for periods prior to and including the Effective Time than are currently set forth in the Company Governing Documents. The Indemnification Agreements with Covered Persons that survive the Merger shall continue in full force and effect in accordance with their terms. From and after the Effective Time, Parent shall guarantee and stand surety for, and shall cause the Company (or its successor) shall maintain for the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basisSurviving Corporation to honor, a directors' and officers' insurance policy for all present and former directors and officers in accordance with their respective terms, each of the Company and the Company Subsidiary, covering claims covenants contained in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurancethis Section 6.4.
(bc) From and after Prior to the Effective Time, the Company shall ensure that articlesor, by-laws and/or other constating documents of if the Company is unable to, Parent shall cause the Surviving Corporation as of or after the Effective Time to, purchase a directors’ and the Company Subsidiary (officers’ liability insurance “tail” or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified “runoff” insurance program for a period of six (6) years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately with respect to wrongful acts and/or omissions committed or allegedly committed at or prior to the Effective TimeTime (such coverage shall have an aggregate coverage limit over the term of such policy in an amount not to exceed the annual aggregate coverage limit under the Company’s existing directors’ and officers’ liability policy, were directors and in all other material respects shall be comparable to such existing coverage); provided, however, that the Company shall not pay, and the Surviving Corporation shall not be obligated to pay, in excess of 300% of the annual premiums paid as of the date hereof by the Company in respect of such “tail” or officers of “runoff” policy. If the Company or the Company SubsidiarySurviving Corporation for any reason fails to obtain such “tail” or “runoff” insurance policies prior to, as of or after the Effective Time, Parent shall, for a period of six (6) years after the Effective Time, cause the Surviving Corporation to maintain in effect the current policies of directors’ and the Company shall ensure that the obligations of officers’ liability insurance maintained by the Company or renewals thereof (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 no less advantageous) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, that Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 200% of the annual premiums paid as of the date hereof by the Company Subsidiary under any indemnification agreements listed in for such insurance (such 200% amount, the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by“Base Premium”); provided, further, if applicablesuch insurance coverage cannot be obtained at all, any successor or can only be obtained at an annual premium in excess of the Base Premium, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Company or the Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsBase Premium.
(d) This 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 of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then and in each such case, proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, shall assume all of the applicable obligations set forth in this Section 7.6 shall survive the termination 6.4.
(e) The Covered Persons (and their successors and heirs) are intended third party beneficiaries of this Agreement if such termination occurs following Section 6.4, and this Section 6.4 shall not be amended in a manner that is adverse to the Effective TimeCovered Persons (including their successors and heirs) or terminated without the consent of the Covered Persons (including their successors and heirs) affected thereby.
Appears in 1 contract
Samples: Merger Agreement (Patient Safety Technologies, Inc)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Purchaser shall cause the Company (or its successor) shall maintain for to, honor and fulfill in all respects and to the period from fullest extent permissible the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers obligations of the Company under provisions of (i) the California General Corporation Law, and (ii) the articles of incorporation and bylaws of the Company in effect on the date hereof (including provisions relating to advancement of expenses and the Company Subsidiarylike), covering claims in respect arising out of acts or relating to actions or omissions of any Covered Person in their his capacity as directors an officer or officers director of the Company occurring at or prior to the Effective Time made prior to or within six years after Closing, including in connection with the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers approval of the Company this Agreement and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurancetransactions contemplated hereby.
(b) From and For a period of six (6) years after the Effective TimeClosing, the articles of incorporation and bylaws of the Company shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of Covered Persons for periods prior to and including the Closing than are currently set forth in such documents.
(c) Prior to and effective as of the Closing, the Company shall ensure that articles, by-laws and/or other constating documents of the Company purchase a directors’ and the Company Subsidiary (officers’ liability insurance “tail” or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified “runoff” insurance program for a period of six (6) years from after the Effective Time in any manner that would adversely affect Closing with respect to wrongful acts and/or omissions committed or allegedly committed by the rights thereunder of individuals who, immediately Covered Persons at or prior to the Effective Time, were directors or officers Closing (such coverage shall have an aggregate coverage limit over the term of such policy in an amount at least equal to the Company or annual aggregate coverage limit under the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its Company’s existing directors and officers continue liability policies, and in place or are assumed byall other respects shall be comparable to such existing coverage). Following the Closing, if applicable, any successor to Purchaser shall cause the Company to maintain the directors’ and officers’ liability insurance “tail” or “runoff” insurance program in full force and effect and continue to honor the Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control obligations thereunder until the sixth anniversary of the Company set out in the Disclosure Letter are paid in accordance with the provisions Closing Date. The cost of such agreements“tail” or “runoff” insurance program (including all annual premiums therefor) shall constitute a Transaction Expense.
(d) This In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then and in each such case, proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, shall assume all of the applicable obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time8.01.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and Subject to Section 9.6, after the Effective Time, the Company Surviving Corporation (or its successorany successor to the Surviving Corporation) shall maintain for the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basisindemnify, a directors' defend and officers' insurance policy for all hold harmless each present and former directors officer and officers director of the Company and the Company SubsidiarySubsidiaries (each, covering claims a "D& O Indemnified Party") against all losses, claims, damages, liabilities, fees and expenses (including reasonable fees and disbursements of counsel) and judgments, fines, losses, claims, liabilities and amounts paid in respect settlement (provided, that, any such settlement is effected with the written consent of acts the Surviving Corporation, such consent not to be unreasonably withheld) incurred by such D&O Indemnified Party by reason of the fact that such person was an officer or omissions director of the Company or any Company Subsidiary at or prior to the Effective Time to the full extent permitted under the laws of the State of Delaware, such right to include, to the extent so permitted under the laws of the State of Delaware, the advancement of expenses incurred in their capacity as the investigation or defense of any action or suit (including any pending or threatened action or suit); provided that, nothing herein shall limit any other indemnification rights of any present or former directors or officers of the Company occurring or any of the Company Subsidiaries, whether pursuant to any organizational or governing documents or any agreement or otherwise.
(b) The Surviving Corporation shall maintain the Company's existing officers' and directors' liability insurance covering claims arising from facts or events that occurred at or prior to the Effective Time made prior to or within ("D&O Insurance"), for a period of not less than six years after the Effective TimeDate; provided, that, the Surviving Corporation may substitute therefor policies of substantially similar coverage and amounts containing terms no less favorable to such former directors or officers; provided further, that if the existing D&O Insurance expires, is terminated or cancelled during such period, the Surviving Corporation will obtain substantially similar D&O Insurance (and in any event no less favorable to such former directors and officers) for the remainder of such period.
(c) To the extent permitted by applicable law, the Surviving Corporation shall cause the Certificate of Incorporation and By-laws of the Surviving Corporation and any Company Subsidiaries which were in existence as of the Closing (the "Covered Subsidiaries") to contain provisions with respect to advancement of expenses, indemnification and exculpation from liability of individuals who on terms and conditions comparable to those applicable or prior to the current Effective Time were directors and or officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required or any Covered Subsidiary at least as favorable to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification persons as those set forth in the Company's or Certificate of Incorporation and By-laws of the Company or such Covered Subsidiary's current articles and/or by-laws, which as applicable, on the date of this Agreement, and shall cause such provisions shall not, except not to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementspersons.
(d) This In the event that the Surviving Corporation, any Covered Subsidiary 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 properties and assets to any Person, then, and in each case, the Surviving Corporation shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation or such Covered Subsidiary, as applicable, honor the indemnification obligations set forth in this Section 7.6 6.6.
(e) The obligations of the Surviving Corporation (with respect to itself and the Covered Subsidiaries) as of the Closing Date under this Section 6.6 shall survive not be terminated, modified or assigned in such a manner as to adversely affect any current or former director or officer to whom this Section 6.6 applies without the termination consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 6.6 applies shall be third-party beneficiaries of this Agreement if such termination occurs following the Effective TimeSection 6.6).
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Parent and the Company (or its successor) Surviving Corporation shall maintain for indemnify and hold harmless the period from individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as were directors or officers of the Company or any of its present or former Subsidiaries (the “Indemnified Parties”) against any costs or expenses (including reasonable attorney’s fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time made prior to or within six years after (including the Effective Time, on terms and conditions comparable to those applicable Transactions) to the current fullest extent a Delaware corporation is permitted by Law to indemnify its directors and officers of the Company officers, and Parent and the Company SubsidiarySurviving Corporation shall, provided that in no event and Parent shall cause the Company be required Surviving Corporation to, promptly advance expenses as incurred to expend more than an amount per year equal the fullest extent a Delaware corporation is permitted by Law to 200% advance expenses to its directors and officers. The certificate of the current annual premiums paid by the Company for such insurance.
(b) From incorporation and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) Surviving Corporation shall contain the provisions with respect to indemnification set forth in and advancement of expenses to the Company's or the Company Subsidiary's current articles and/or by-lawsfullest extent permitted by Law, which provisions shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties.
(b) Parent and the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect for not less than six years from the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (including the policies listed on Section 6.7 of the Company Disclosure Letter) maintained by the Company and the Company’s Subsidiaries for the Indemnified Parties and any other employees, agents or other individuals whootherwise covered by such insurance policies prior to the Effective Time (collectively, immediately the “Insured Parties”) with respect to matters occurring at or prior to the Effective Time (including the Transactions); provided that Parent and the Surviving Corporation may substitute therefor policies of substantially the same coverage containing terms and conditions that are no less advantageous to the Insured Parties and provided, further, that in no event shall Parent and the Surviving Corporation be required to pay aggregate annual premiums for insurance under this Section 6.7(b) in excess of 250% of the last annual premium paid by the Company prior to the date hereof for its existing directors’ and officers’ liability insurance and fiduciary liability insurance, which amount is set forth on Section 6.7 of the Company Disclosure Letter (the “Maximum Premium”), it being understood that if such terms and conditions cannot be obtained or can be obtained only by paying an annual premium in excess of the Maximum Premium, Parent shall only be required to obtain as much similar insurance as may be obtained for such Maximum Premium. At the Company’s option, the Company may purchase prior to the Effective Time a six-year prepaid “tail” policy on terms and conditions providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (including the policies listed on Section 6.7 of the Company Disclosure Letter) maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the Transactions; provided, however, that the Company shall not pay or agree to pay aggregate annual premiums for such policy in excess of the Maximum Premium. If such “tail” prepaid policy has been obtained by the Company prior to the Effective Time, were directors or officers of the Company or the Company SubsidiaryParent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Company Surviving Corporation, and no other party shall ensure that the obligations of the Company have any further obligation to purchase or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarypay for insurance hereunder.
(c) The Offeror Parent shall ensure pay all reasonable expenses, including reasonable attorneys’ fees, that all amounts payable under all employment may be incurred by any Indemnified Party in enforcing the indemnity and other agreements obligations provided in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsthis Section 6.7.
(d) This Section 7.6 6.7 is intended to benefit the Insured Parties and the Indemnified Parties, and shall survive be binding on all successors and assigns of Parent, Merger Sub, the termination Company and the Surviving Corporation. Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other obligations pursuant to this Agreement if Section 6.7 and the certificate of incorporation and by-laws of the Surviving Corporation.
(e) In the event that Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving Person of such termination occurs following consolidation or merger or (ii) transfers or conveys a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the Effective Timesuccessors, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 6.7.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) shall maintain The Acquiring Parties agree that for the period from the Effective Time until six years thereafter on a "trailing" after the Effective Time, the Offeror will cause Zarlink and its subsidiaries (or "run-off" basis, a any successors thereof) to maintain the current directors' ’ and officers' ’ insurance policy policies or policies reasonably equivalent thereto; provided that without detracting from the foregoing, the insurance shall contain terms and conditions no less advantageous to the directors and officers of Zarlink and its subsidiaries than those contained in the policies in effect on the date hereof, for all present directors and officers of Zarlink and its subsidiaries at the Effective Time and former directors and officers of the Company Zarlink and the Company Subsidiaryits subsidiaries, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Expiry Time; and provided, on terms further, that neither Zarlink nor the Offeror shall be required, in order to maintain such directors’ and conditions comparable officers’ insurance policy, to those applicable to pay an annual premium in excess of 200% of the current directors annual cost (the “Current Premia”) of the existing policies; and officers provided further that, if equivalent coverage cannot be obtained or can only be obtained by paying an annual premium in excess of 200% of the Current Premia, the Company and the Company Subsidiary, provided that in no event Offeror shall the Company only be required to expend more than obtain as much coverage as can be obtained by paying an amount per year annual premium equal to 200% of the current annual premiums Current Premia. Alternatively, the Corporation may purchase, prior to or following the Effective Time, pre-paid by the Company non-cancellable run-off directors and officers’ liability insurance providing such coverage for such insuranceindividuals on terms comparable to those contained in the current insurance policies. The Acquiring Parties also hereby agree that after the expiration of such six-year period, it will use reasonable efforts to cause such directors and officers to be covered under its then existing directors’ and officers’ insurance policies.
(b) From and after the Effective Time, the Company Acquiring Parties shall ensure that articles, by-laws and/or other constating documents of the Company cause Zarlink and the Company Subsidiary its subsidiaries (or their successorsany successors thereof) shall contain jointly and severally to indemnify the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed byof Zarlink and its subsidiaries, if applicable, any successor to the Company fullest extent to which the Acquiring Parties and Zarlink are permitted to indemnify them under their respective constating documents and applicable Law, from all claims in connection with any transactions or the Company Subsidiarymatters contemplated under this Agreement or otherwise in connection with Zarlink, its subsidiaries and their respective businesses and properties.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of this Section 6.1 are intended to be for the benefit of, and will be enforceable by, each individual director and officer referred to herein, his or her heirs and successors and his or her legal representatives and for such agreements.
(d) This purpose only, Zarlink hereby confirms that it is acting as agent on their behalf. The provisions of this Section 7.6 6.1 shall survive the any termination of this Agreement if such termination occurs following the Effective TimeAgreement.
Appears in 1 contract
Samples: Support Agreement (Microsemi Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From Prior to or at the Closing, the Sellers will cause the Companies to purchase “tail” coverage for (a) the six (6) year period following the Closing under the Companies’ current directors’ and officers’ liability, employment practices liability and fiduciary liability insurance policies and (b) the three (3) year period following the Closing under the Companies’ current errors and omissions insurance policies, in each case, with respect to matters existing or occurring at or prior to the Closing that provides coverage in at least the same scope and amount to the coverage provided by such policies on the date hereof. All premiums, fees, Taxes and other expenses associated with such “tail” coverages shall be included in the Transaction Expenses.
(b) For a period of six (6) years after the Effective TimeClosing Date, the Company (or its successor) Companies shall, and Purchaser shall maintain for cause the period from Companies to, indemnify and hold harmless the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers officers, directors, managers, partners or similar functionaries of the Company and the Company Subsidiary, covering claims Companies in respect of acts or omissions in their capacity as directors occurring on or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable Closing Date to the current directors and officers of extent provided under the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating organizational or constituent documents of the Company and Companies in effect on the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarydate hereof.
(c) The Offeror For a period of six (6) years after the Closing, Purchaser shall ensure that all amounts payable under all employment not, and other agreements shall not permit the Companies to, amend, repeal or otherwise modify any provision in respect the certificate of incorporation or upon a change of control by-laws (or equivalent governing documents) of the Company set out Companies relating to the exculpation or indemnification of any officers, directors, managers or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law), it being the intent of the Parties that the current and former officers, directors, managers and similar functionaries of any of the Companies shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the extent provided under each governing document of the Companies in effect on the Disclosure Letter are paid in accordance with the provisions of such agreementsdate hereof. Purchaser agrees and acknowledges that this Section 6.5 shall be binding on Purchaser’s successors and assigns.
(d) This If Purchaser, the Companies or any successor or assign of any of the foregoing (i) shall 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) shall 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 successors and assigns of Purchaser or the Companies, as the case may be, shall assume all of the applicable obligations set forth in this Section 7.6 shall survive 6.5.
(e) Notwithstanding anything in this Agreement to the termination contrary, if on or prior to the sixth (6th) anniversary of the Closing, any claim, action, suit, proceeding or investigation (whether arising before, on or after the Closing Date) is made against any individual who was an officer, director, manager or similar functionary of any of the Companies at or prior to the Closing or any other party covered by directors’ and officers’ liability insurance, the provisions of this Agreement if Section 6.5 shall continue in effect until the final disposition of such termination occurs following claim, action, suit, proceeding or investigation.
(f) The provisions of this Section 6.5 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 6.5 applies without the Effective Timeconsent of such affected indemnitee or exculpee. The provisions of this Section 6.5 are intended for the benefit of, and will be enforceable by (as express third party beneficiaries), each current and former officer, director, partner, manager or similar functionary of the Companies and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have had by contract or otherwise.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective TimeTime until the six year anniversary of the Closing, the Company Surviving Corporation shall (or its successorand if the Surviving Corporation for any reason cannot, the Parent shall) shall maintain for indemnify and hold harmless the period from individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as were directors or officers of the Company or any of its present or former Subsidiaries or corporate parents (the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees and disbursements), judgments, fines, losses, claims, settlements, damages or liabilities in connection with actions or omissions occurring or alleged to have occurred at or prior to the Effective Time made prior to (including the transactions contemplated by this Agreement) and advance expenses with respect thereto, in each case as provided, as applicable, in the certificates of incorporation and bylaws (or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers organizational documents) of the Company and the Company Subsidiaryits Subsidiaries, provided that and in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of any indemnification agreements between the Company and any Indemnified Party entered into prior to the Company Subsidiary (or their successors) date hereof and a copy of which has been provided to Parent. The certificate of incorporation and bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and advancement of expenses set forth in the Company's or certificate of incorporation and bylaws of the Company Subsidiary's current articles and/or by-lawsas amended, which restated and in effect on the date of this Agreement, and any indemnification agreements between the Company and any Indemnified Party shall survive the Merger and shall continue in full force and effect in accordance with their terms, and such provisions and agreements shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six (6) years from after the Effective Time Closing Date in any manner that would adversely affect the rights thereunder of the Indemnified Parties, unless such modification is required by Law.
(b) Parent shall cause to be maintained in effect for not less than six (6) years from the Effective Time the policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries as of the date hereof (or such other insurance policy with the same coverage and amounts with terms and conditions that are not less advantageous than the Company’s existing policies) for the Indemnified Parties and any other employees, agents or other individuals whootherwise covered by such insurance policies prior to the Effective Time (collectively, immediately the “Insured Parties”) with respect to matters occurring or alleged to have occurred at or prior to the Effective Time (including the transactions contemplated by this Agreement); provided, however, that in lieu of the purchase of such insurance by Parent or the Surviving Corporation, the Company may at its option prior to the Effective Time purchase a six-year run-off program for directors’ and officers’ liability insurance and fiduciary liability insurance providing at least the same coverage with respect to matters occurring at or prior to the Effective Time; provided, were directors or officers further that in no event shall Parent be required to pay annually in excess of 300% of the Company or last annual premium paid by the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor for such insurance prior to the Company or the Company Subsidiarydate hereof.
(c) The Offeror This Section 6.6 is intended to benefit the Insured Parties and the Indemnified Parties, shall ensure that be binding on all amounts payable under all employment successors and assigns of Parent, Merger Sub, the Company and the Surviving Corporation, and shall be enforceable by each Indemnified Party and Insured Party and his or her heirs and representatives. Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other agreements in respect obligations pursuant to this Section 6.6 and the certificate of or upon a change of control incorporation and bylaws of the Company set out in Surviving Corporation. Notwithstanding anything herein to the Disclosure Letter are paid in accordance contrary, if any action (whether arising before, at or after the Effective Time) with respect to which an Indemnified Party is entitled to indemnification is instituted against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, then the provisions of this Section 6.6 shall continue in full force and effect until the final disposition of such agreementsaction.
(d) This In the event that Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.6.
Appears in 1 contract
Samples: Merger Agreement (Intermec, Inc.)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company For a period of six (or its successor6) shall maintain for the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective TimeClosing Date, except as otherwise required by Law, XXXX III, and any successor in interest thereof, shall cause the Organizational Documents of NewCo to contain provisions relating to exculpation, indemnification and advancement of expenses for officers and directors of NewCo that are no less favorable to such Persons than those provisions contained in the Organizational Documents of NewCo as in effect on terms the date hereof (true and conditions comparable complete copies of which Organizational Documents have been previously provided to those applicable XXXX III). In addition, for a period of six (6) years after the Closing Date, XXXX III, and any successor in interest thereof, shall not, and shall not permit NewCo to, amend, repeal or modify any provision in NewCo’s Organizational Documents relating to the current exculpation, indemnification or advancement of expenses for officers and directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be NewCo unless required to expend more than an amount per year equal do so by Law; provided, however, that notwithstanding the foregoing, nothing in this Section 8.11 shall restrict the ability of NewCo following the Closing to 200% consolidate with or merge into any Person, to transfer or convey all or substantially all of its properties and assets or to otherwise liquidate so long as proper provision shall be made so that the current annual premiums paid by successors or assigns of NewCo, as the Company for such insurancecase may be, shall succeed to its then exculpation, indemnification and expense-advancement obligations in its Organizational Documents.
(b) From and after On or prior to the Effective TimeClosing Date, the Company AHI shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions purchase a “tail” insurance policy with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified its then existing directors’ and officers’ liability insurance coverage for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue of AHI and the Sponsor Contributor Entities that shall provide such directors and officers with coverage for six (6) years following the Closing Date (including with respect to acts or omissions occurring in place connection with the transactions contemplated hereby). At the Closing, XXXX III shall reimburse AHI for the cost of any such purchased policy (but net of any short rate or are assumed bypro rata premium credit for prepaid post-Closing periods), if applicable, any successor in an amount not to the Company or the Company Subsidiaryexceed $70,000.
(c) The Offeror For a period of six (6) years after the Closing Date, XXXX III (and any successor in interest to it) shall ensure that all amounts payable under all employment indemnify and other agreements in hold harmless the Sponsors, the Sponsor Contributor Entities and their respective Affiliates, officers, directors, partners and employees (collectively, the “Covered Persons”) to the same extent (including with respect to any advancement of or upon a change of control of the Company set out expenses) as provided in the Disclosure Letter are paid Advisory Agreements (as in accordance with effect immediately prior to the provisions of such agreementsdate hereof) for any acts or omissions thereunder occurring on or prior to the Closing Date.
(d) This In the event that XXXX III or XXXX III OP 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 or assigns of XXXX III or XXXX III OP, as the case may be, shall succeed to the obligations set forth in this Section 7.6 shall survive the termination 8.11.
(e) The provisions of this Agreement if Section 8.11 are intended for the benefit of, and will be enforceable by, each current and former officer, director or similar functionary of NewCo (including any Covered Person) and his or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such termination occurs following the Effective TimePerson may have had by contract or otherwise.
Appears in 1 contract
Samples: Contribution Agreement (Griffin-American Healthcare REIT III, Inc.)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) Parent shall, and shall maintain for cause the period from Surviving Corporation to, indemnify and hold harmless the individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as were directors or officers of the Company or any of its present or former Subsidiaries or corporate parents (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time made prior to or within six years after (including the Effective Time, on terms and conditions comparable to those applicable Transactions) to the current directors fullest extent that the Surviving Corporation is permitted by Law, and officers the Parent shall, and shall cause the Surviving Corporation to, promptly advance expenses as incurred to the fullest extent that the Surviving Corporation is permitted by Law. The certificate of incorporation and bylaws of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) Surviving Corporation shall contain the provisions with respect to indemnification and advancement of expenses set forth in the Company's or certificate of incorporation and bylaws of the Company Subsidiary's current articles and/or by-lawsas amended, restated and in effect on the Agreement Date, which provisions shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of the Indemnified Parties, unless such modification is required by Law.
(b) Without limiting any of the obligations under paragraph (a) of this Section 6.6, from and after the Effective Time, the Surviving Corporation shall keep in full force and effect, and comply with the terms and conditions of, any agreement in effect as of the Agreement Date between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party.
(c) The Parent shall cause to be maintained in effect for not less than six (6) years from the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and the Company’s Subsidiaries for the Indemnified Parties and any other employees, agents or other individuals whootherwise covered by such insurance policies prior to the Effective Time (collectively, immediately the “Insured Parties”) with respect to matters occurring at or prior to the Effective Time (including the Transactions), so long as the annual premium therefore would not be in excess of two hundred and fifty percent (250%) of the last annual premium paid prior to the Effective Time (the “Maximum Premium”). Notwithstanding anything to the contrary in this Agreement, the Company may, prior to the Effective Time, were directors or officers purchase a so-called “Reporting Tail Endorsement” with an annual premium not in excess of the Company or the Company SubsidiaryMaximum Premium, and the Company shall ensure in which case, provided that the Parent causes the Surviving Corporation to maintain such Reporting Tail Endorsement in full force and effect for not less than six (6) years from the Effective Time, the Parent shall be relieved from its other obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsthis Section 6.6.
(d) This Section 7.6 6.6 is intended to benefit the Insured Parties and the Indemnified Parties, and shall survive be binding on all successors and assigns of the termination Parent, the Purchaser, the Company and the Surviving Corporation. The Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other obligations pursuant to this Agreement if such termination occurs following Section 6.6 and the certificate of incorporation and bylaws of the Surviving Corporation.
(e) After the Effective Time, the Parent guarantees the full performance of the Surviving Corporation of its covenants and obligations set forth in this Section 6.6.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) shall maintain for the period from the Effective Time until six years thereafter on a "“trailing" ” or "“run-off" ” basis, a directors' ’ and officers' ’ insurance policy for all present and former directors and officers of the Company and the Company SubsidiarySubsidiaries, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company SubsidiarySubsidiaries, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary Subsidiaries (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's ’s or the applicable Company Subsidiary's ’s current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or the any Company Subsidiary, and the Company shall ensure that the obligations of the Company or the any Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the any Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the any Company Subsidiary.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreements.
(d) This Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) shall maintain The Acquiring Parties agree that for the period from the Effective Time until six years thereafter on a "trailing" after the Effective Time, the Offeror will cause Zarlink and its subsidiaries (or "run-off" basis, a any successors thereof) to maintain the current directors' ’ and officers' ’ insurance policy policies or policies reasonably equivalent thereto; provided that without detracting from the foregoing, the insurance shall contain terms and conditions no less advantageous to the directors and officers of Zarlink and its subsidiaries than those contained in the policies in effect on the date hereof, for all present directors and officers of Zarlink and its subsidiaries at the Effective Time and former directors and officers of the Company Zarlink and the Company Subsidiaryits subsidiaries, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Expiry Time; and provided, on terms further, that neither Zarlink nor the Offeror shall be required, in order to maintain such directors' and conditions comparable officers' insurance policy, to those applicable to pay an annual premium in excess of 200% of the current directors annual cost (the "Current Premia") of the existing policies; and officers provided further that, if equivalent coverage cannot be obtained or can only be obtained by paying an annual premium in excess of 200% of the Current Premia, the Company and the Company Subsidiary, provided that in no event Offeror shall the Company only be required to expend more than obtain as much coverage as can be obtained by paying an amount per year annual premium equal to 200% of the current annual premiums Current Premia. Alternatively, the Corporation may purchase, prior to or following the Effective Time, pre-paid by the Company non-cancellable run-off directors and officers’ liability insurance providing such coverage for such insuranceindividuals on terms comparable to those contained in the current insurance policies. The Acquiring Parties also hereby agree that after the expiration of such six-year period, it will use reasonable efforts to cause such directors and officers to be covered under its then existing directors’ and officers’ insurance policies.
(b) From and after the Effective Time, the Company Acquiring Parties shall ensure that articles, by-laws and/or other constating documents of the Company cause Zarlink and the Company Subsidiary its subsidiaries (or their successorsany successors thereof) shall contain jointly and severally to indemnify the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed byof Zarlink and its subsidiaries, if applicable, any successor to the Company fullest extent to which the Acquiring Parties and Zarlink are permitted to indemnify them under their respective constating documents and applicable Law, from all claims in connection with any transactions or the Company Subsidiarymatters contemplated under this Agreement or otherwise in connection with Zarlink, its subsidiaries and their respective businesses and properties.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of this Section 6.1 are intended to be for the benefit of, and will be enforceable by, each individual director and officer referred to herein, his or her heirs and successors and his or her legal representatives and for such agreements.
(d) This purpose only, Zarlink hereby confirms that it is acting as agent on their behalf. The provisions of this Section 7.6 6.1 shall survive the any termination of this Agreement if such termination occurs following the Effective TimeAgreement.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective TimeClosing, Avago and the Company Broadcom Surviving Corporation shall, and Holdco shall cause Avago and the Broadcom Surviving Corporation to, indemnify and hold harmless the individuals who at any time prior to the Closing were directors or officers of Broadcom, Avago or any of their respective present or former Subsidiaries (the “Indemnified Parties”) against any costs or its successorexpenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Closing (including the transactions contemplated by this Agreement) to the fullest extent permitted by Law and the applicable Charter Documents of the Broadcom Surviving Corporation and the Avago Charter, and Avago and the Broadcom Surviving Corporation shall, and Holdco shall maintain cause Avago and the Broadcom Surviving Corporation to, promptly advance expenses as incurred to the fullest extent permitted by Law and the applicable Charter Documents of the Broadcom Surviving Corporation and the Avago Charter. Holdco agrees that all rights to exculpation or indemnification for acts or omissions occurring prior to the period from Closing existing as of the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former Closing in favor of directors and officers of the Company Broadcom, Avago, or any of their respective Subsidiaries or any of their respective predecessors in their capacities as officers and directors and the Company Subsidiaryheirs, covering claims executors, trustees, fiduciaries and administrators of such officers or directors (each, a “D&O Indemnitee”), as provided in Broadcom’s Charter Documents, the Avago Charter or Avago’s and Broadcom’s respective Subsidiaries’ respective Charter Documents or in any agreement between such D&O Indemnitee and Broadcom, Avago, or any of their respective Subsidiaries or any of their respective predecessors, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect in accordance with their terms; provided, however, that all rights to exculpation and indemnification in respect of acts any Proceeding pending or omissions in their capacity as directors asserted or officers any claim made within such period shall continue until the final disposition of such Proceeding. After the Company occurring prior Closing, Avago and the Broadcom Surviving Corporation shall (and Holdco shall cause Avago and the Broadcom Surviving Corporation to) fulfill and honor such obligations to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those maximum extent permitted by applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insuranceLaw.
(b) From Prior to the Closing, each of Broadcom and Avago shall or, if Broadcom or Avago is unable to, Holdco shall cause each of the Broadcom Surviving Corporation and Avago as of the Closing to, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of Broadcom’s and Avago’s respective existing directors’ and officers’ insurance policies and Broadcom’s and Avago’s respective existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions Closing with respect to indemnification set forth any claim related to any period of time at or prior to the Closing from an insurance carrier with the same or better credit rating as Broadcom’s and Avago’s current D&O Insurance carrier with respect to directors’ and officers’ liability insurance in the Company's an amount and scope at least as favorable as Broadcom’s and Avago’s existing policies. If Broadcom or the Company Subsidiary's current articles Broadcom Surviving Corporation and/or by-lawsAvago for any reason fails to obtain such “tail” insurance policies as of the Closing, which provisions (i) each of the Broadcom Surviving Corporation and Avago, as applicable, shall notcontinue to maintain in effect, except to the extent required by applicable Laws, be amended, repealed or otherwise modified for a period of at least six (6) years from and after the Effective Time Closing, the D&O Insurance in any manner place as of the date of this Agreement with Broadcom’s and Avago’s respective current insurance carrier or with an insurance carrier with the same or better credit rating as Broadcom’s and Avago’s respective current D&O Insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as Broadcom’s and Avago’s respective existing policies, or (ii) Holdco will provide, or cause the Avago and the Broadcom Surviving Corporation to provide, for a period of not less than six (6) years after the Closing, the D&O Indemnitees who are insured under Broadcom’s or Avago’s respective D&O Insurance with comparable D&O Insurance that would adversely affect the rights thereunder of individuals who, immediately provides coverage for events occurring at or prior to the Effective TimeClosing from an insurance carrier with the same or better credit rating as Broadcom’s or Avago’s respective current D&O Insurance carrier, were directors that is no less favorable than the existing policy of Broadcom or officers Avago, respectively, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that Holdco and Avago and the Broadcom Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 300% of the Company annual premium currently paid by Broadcom or Avago, as applicable, for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, Holdco, Avago or the Company SubsidiaryBroadcom Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor with respect to matters occurring prior to the Company or the Company SubsidiaryClosing, for a cost not exceeding such amount.
(c) The Offeror This Section 6.7 is intended to benefit the Indemnified Parties and the D&O Indemnitees, and shall ensure that be binding on all amounts payable under all employment successors and other agreements in respect assigns of or upon a change of control of Holdco, Avago and the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsBroadcom Surviving Corporation.
(d) This In the event that Holdco, Avago, the Broadcom Surviving Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of Holdco, Avago and the Broadcom Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.7.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) All rights to indemnification and exoneration (including provisions relating to expense reimbursement or advancement) now existing in favor of any current or former director, officer, employee or agent of the Company or any Company Subsidiary (the “Covered Persons”) under the Company Governing Documents or such Company Subsidiary’s organizational documents, or in agreements between a Covered Person and the Company or one of its Subsidiaries (each, an “Indemnification Agreement”), shall survive the Merger and shall continue in full force and effect (and shall not be amended, repealed or otherwise modified in any adverse respect) for a period of not less than six (6) years after the Effective Time, or with respect to any such Indemnification Agreement, in accordance with the terms of such Indemnification Agreement. If any Covered Person is or becomes involved in any Legal Proceeding in connection with any matter in respect of which such Covered Person would be entitled to be indemnified by the Company or the Surviving Corporation, then to the extent not provided in the foregoing, the Company, and after the Effective Time, the Surviving Corporation shall (and Parent shall cause Surviving Corporation to), pay, as incurred, such Covered Person’s legal fees, costs and expenses incurred in connection with such Legal Proceeding, subject to receipt of an undertaking by or on behalf of such Covered Person to repay such legal fees, costs and expenses if it is ultimately determined by a court of competent jurisdiction (after all rights to appeal shall have expired) that such Covered Person is not entitled to be indemnified under applicable Laws.
(b) For a period of six (6) years after the Effective Time, the respective certificates of incorporation and bylaws or similar organizational or governing documents of the Surviving Corporation and the Company Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of Covered Persons for periods prior to and including the Effective Time than are currently set forth in the Company Governing Documents and the certificates of incorporation, bylaws, or similar organizational and governing documents of the Company Subsidiaries. From and after the Effective Time, Parent shall cause the Surviving Corporation and the Company Subsidiaries to honor, in accordance with their respective terms, the covenants contained in this Section 6.7. Parent shall also assume, honor, and guaranty and stand as surety for the Surviving Corporation and provide the Surviving Corporation with sufficient funds to fulfill its obligations in this Section 6.7.
(c) The Parent shall, or shall cause the Surviving Corporation to, maintain and extend (i) for a period of not less than six (6) years after the Effective Time all existing officers’ and directors’ liability insurance of the Company (or its successor“D&O Insurance”) shall maintain and (ii) for the a period from of not less than three (3) years after the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' all existing employment practices liability insurance policy for all present and former directors and officers of the Company (“EPL Insurance”), and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers existing employment benefit plan fiduciary liability insurance of the Company occurring (“Fiduciary Insurance”), in all cases with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred on or before the Effective Time, including in connection with the approval of the Merger and the adoption of this Agreement; provided, however, that Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to the Covered Persons than the existing D&O Insurance, EPL Insurance, and Fiduciary Insurance (so long as such policies are provided by the Company’s current insurance carrier or by a carrier with a rating no lower than an A.M. Best rating of A); provided, further, that (i) if the existing D&O Insurance, EPL Insurance or Fiduciary Insurance expires or is terminated or cancelled during such period, the Parent shall, or shall cause the Surviving Corporation to, obtain and maintain substantially similar D&O Insurance, EPL Insurance, or Fiduciary Insurance (as applicable) (with such replacement policies to be provided by the Company’s current insurance carrier or by a carrier with a rating no lower than an A.M. Best rating of A); (ii) in no event shall Parent be required to pay aggregate premiums for insurance under this Section 6.7(c) in excess of 250% of the aggregate premiums paid by the Company in 2011 for such purpose (the “Base Premium”), the true and correct amount of which is set forth on Section 6.7(c) of the Company Disclosure Schedule; and (iii) if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 6.7(c) for such aggregate premium, Parent shall, or shall cause the Surviving Corporation to, obtain as much insurance as can be obtained for aggregate premiums not in excess of 250% of the Base Premium. At the Company’s option, it may, after consulting with Parent and considering Parent’s views in good faith, elect to obtain prepaid “tail” or “runoff” policies prior to the Effective Time made covering a period of six (6) years from and after the Effective Time with respect to acts and omissions occurring on or prior to the Effective Time; provided that the premium therefor does not exceed 250% of the Base Premium. In the event the Company purchases a “tail” or within “runoff” policy prior to the Effective Time, Parent and the Surviving Corporation shall maintain such tail or runoff policy in full force and effect in lieu of all other obligations of Parent and the Surviving Corporation in the first sentence of this Section 6.7(c) for so long as any such tail or runoff policy remains in full force and effect.
(d) The rights of each Covered Person hereunder shall be in addition to, and not in limitation of, any other rights such Covered Person may have under the certificates of incorporation or bylaws or other organization or governing documents of the Company or any Company Subsidiary, any other indemnification arrangement, the DGCL or otherwise.
(e) For six (6) years after the Effective Time, on terms in the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and conditions comparable 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 those applicable to any Person, then and in each such case, proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the current directors and officers case may be, shall assume all of the Company and the Company Subsidiary, provided that applicable obligations set forth in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurancethis Section 6.7.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiary.
(cf) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreements.
(d) This this Section 7.6 6.7 shall survive the termination consummation of the Merger. The Covered Persons (and their successors and heirs) are intended third party beneficiaries of this Agreement if such termination occurs following Section 6.7, and this Section 6.7 shall not be amended in a manner that is adverse to the Effective TimeCovered Persons (including their successors and heirs) or terminated without the consent of the Covered Persons (including their successors and heirs) affected thereby.
Appears in 1 contract
Samples: Merger Agreement (Advance America, Cash Advance Centers, Inc.)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company (or its successor) Surviving Corporation shall, and Purchaser shall maintain for cause the period from Surviving Corporation to, indemnify and hold harmless the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring individuals who at any time prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or any of its present or former Subsidiaries (the Company Subsidiary“Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time (including the Contemplated Transactions) as provided in the Organizational Documents (as in effect on the date of this Agreement) and the Company shall ensure that the obligations of the Company or the Company Subsidiary under as provided in any indemnification agreements listed in the Disclosure Letter between the Company or and the Indemnified Parties (as may have been in effect as of the applicable date) to the fullest extent permitted by Law, and Purchaser and the Surviving Corporation shall, and Purchaser shall cause the Surviving Corporation to, promptly advance expenses as incurred to the fullest extent permitted by Law.
(b) The Surviving Corporation shall, and Purchaser shall cause the Surviving Corporation to, maintain in effect for not less than six (6) years from the Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company Subsidiary and its directors the Company’s Subsidiaries for the Indemnified Parties and officers continue in place any other employees, agents or are assumed byother individuals (collectively, if applicable, the “Insured Parties”) otherwise covered by such insurance policies at any successor time prior to the Company Effective Time (the “Existing D&O Policies”) with respect to matters occurring at or prior to the Company SubsidiaryEffective Time (including the Contemplated Transactions) and; provided that the Surviving Corporation may substitute therefor policies of substantially the same coverage containing terms and conditions that are no less advantageous to the Insured Parties and in any event shall include nonmanagement directors Side A (DIC) coverage to the extent available within the Maximum Premium. In no event shall the Surviving Corporation be required to pay annual premiums for the Existing D&O Policies (or for any substitute policies) in excess of $1,600,000 (the “Maximum Premium”). To the extent available within the Maximum Premium, immediately prior to the Closing the Surviving Corporation shall purchase “tail” insurance covering the entire period in which the Surviving Corporation is obligated to provide coverage under this Section 6.6(b) and provide written evidence to the Special Committee prior to the Closing reasonably satisfactory to it that such “tail” insurance will be in effect immediately after the Closing. In the event any future annual premiums for the Existing D&O Policies (or any substitute policies) exceed the Maximum Premium, the Surviving Corporation shall be entitled to reduce the amount of coverage of the Existing D&O Policies (or any substitute policies) to the maximum amount of coverage that can be obtained for a premium equal to the Maximum Premium.
(c) The Offeror Purchaser shall ensure pay all reasonable expenses, including reasonable attorneys’ fees, that all amounts payable under all employment may be incurred by any Indemnified Party in enforcing the indemnity and other agreements obligations provided in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsthis Section 6.6.
(d) This Section 7.6 6.6 is intended to benefit the Insured Parties and the Indemnified Parties, and shall survive be binding on all successors and assigns of Purchaser, Sub, the termination Company and the Surviving Corporation.
(e) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of the Surviving Corporation or its respective successors or assigns, as the case may be, assume the obligations set forth in this Agreement if such termination occurs following the Effective TimeSection 6.6.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless to the fullest extent permitted by Law the present and former officers and directors of the Company and its Subsidiaries against all losses, claims, damages and liabilities in respect of acts or omissions occurring at or prior to the Effective Time. Parent shall cause the Surviving Corporation (and its successors) to establish and maintain provisions in its certificate of incorporation and bylaws (or other comparable organizational documents) concerning the indemnification and exoneration of the Company’s former and present officers, directors, employees and agents that are no less favorable to those persons than the provisions of the Company’s certificate of incorporation and bylaws. Parent shall cause the Surviving Corporation to, fulfill and honor in all respects all rights to indemnification, advancement of litigation expenses and limitation of personal liability existing in favor of the directors, officers and employees of the Company and its successor) shall maintain for Subsidiaries under the period from provisions existing on the date of this Agreement in any indemnification agreements between the Company and such individuals and all such provisions shall, with respect to any matter existing or occurring at or prior to the Effective Time until (including the transactions contemplated by this Agreement), survive the Effective Time, and, as of the Effective Time, the Surviving Corporation shall assume all obligations of the Company in respect thereof as to any claim or claims asserted prior to or after the Effective Time.
(b) Prior to the Closing, Parent shall obtain and pay for a directors’ and officers’ liability insurance tail policy, including employment practices and securities liability, for the Company (and the Surviving Corporation as successor in interest) (the “D&O Policy”) with a term of six years thereafter on a "trailing" or "run-off" basisfollowing the date of the Closing and providing for coverage and amounts, a directors' and officers' insurance policy for all present containing terms and former conditions, which are no less advantageous to the directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to than the current directors policies of directors’ and officers of officers’ and liability insurance maintained by the Company and the Company SubsidiaryCompany; provided, provided however, that in no event shall will Parent or the Company Surviving Corporation be required to expend more than an amount per year equal to in excess of 200% of the current annual premiums premium currently paid by the Company for such insurance.
(b) From coverage for the purchase of such tail policy, and after if the Effective Timecost for such coverage is in excess of such amount, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's Parent or the Company Subsidiary's current articles and/or by-lawsSurviving Corporation, which provisions as the case may be, shall not, except only be required to the extent required by applicable Laws, be amended, repealed or otherwise modified maintain such coverage as is available for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarysuch amount.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of this Section 6.8 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such agreementsPerson may have by contract or otherwise.
(d) This Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (QRS Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Parent and the Surviving Company (shall, and Parent shall cause the Surviving Company to, maintain all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or its successor) shall maintain for the period from omissions occurring at or prior to the Effective Time until six years thereafter on a "trailing" now existing in favor of the current or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and (the Company Subsidiary“D&O Indemnified Parties”) as provided in the Company’s certificate of incorporation or bylaws (in each case, covering claims as in respect effect on the date hereof), without further action as of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to such rights shall survive the current directors Merger and officers shall continue in full force and effect in accordance with their terms. The certificate of incorporation and bylaws of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Surviving Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the substantially similar provisions with respect to indemnification indemnification, advancement of expenses and limitation of director liability set forth in the Company's or certificate of incorporation and bylaws of the Company Subsidiary's current articles and/or by-lawson the date of this Agreement, which provisions thereafter shall not, except to the extent required by applicable Laws, 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 whothe D&O Indemnified Parties.
(b) Parent shall obtain a prepaid (or “tail”) directors’ and officers’ liability insurance policy or an extended reporting period endorsement on the Company’s directors’ and officers’ liability policy in effect on the date of this Agreement, immediately in respect of acts or omissions occurring at or prior to the Effective Time for a period extending six (6) years from the Effective Time, were directors or officers covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy (a complete and accurate copy of which has been heretofore made available to Parent) (collectively, the Company or “Insured Parties”) on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the Company Subsidiary, and the Company shall ensure that the obligations date of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarythis Agreement.
(c) The Offeror This Section 5.5 is intended to benefit the Insured Parties and the D&O Indemnified Parties and their successors, heirs or representatives, and shall ensure that be binding on all amounts payable under all employment successors and other agreements in respect assigns of or upon a change of control of Parent, Merger Sub, the Company set out in and the Disclosure Letter are paid in accordance with the provisions of such agreementsSurviving Company.
(d) This Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective TimeClosing, the Company (or its successor) Surviving Corporation shall maintain for indemnify and hold harmless the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring individuals who at any time prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, Closing were directors or officers of the Company or any of the Company SubsidiarySubsidiaries (the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Closing to the fullest extent permitted by Law and the applicable Governing Documents of the Surviving Corporation, and the Company Surviving Corporation shall ensure promptly advance expenses as incurred to the fullest extent permitted by Law and the applicable Governing Documents of the Surviving Corporation. Holdco agrees that all rights to exculpation or indemnification for acts or omissions occurring prior to the obligations Closing existing as of the Closing in favor of directors and officers of the Company or the Company Subsidiary under any indemnification agreements listed of its Subsidiaries in their capacities as officers and directors thereof (each, a “D&O Indemnitee”), as provided in the Disclosure Letter Company’s or its Subsidiaries’ respective Governing Documents or in any agreement between such D&O Indemnitee and the Company or any of the Company Subsidiary Subsidiaries, shall survive the transactions contemplated by this Agreement and its directors and officers shall continue in place full force and effect in accordance with their terms; provided, however, that all rights to exculpation and indemnification in respect of any proceeding pending or are assumed byasserted or any claim made within such period shall continue until the final disposition of such proceeding. After the Closing, the Parties shall fulfill and honor such obligations to the maximum extent permitted by applicable Law.
(b) Prior to the Closing, the Company shall or, if applicablethe Company is unable to, Holdco shall, promptly after the Closing, cause the Surviving Corporation to, obtain and fully pay the premium for “tail” insurance policies for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policy and the Company’s existing fiduciary liability insurance policy (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of six (6) years from and after the Closing with respect to any successor claim related to any period of time at or prior to the Company Closing from an insurance carrier with the same or better credit rating as the Company’s current D&O Insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope substantially similar to the Company’s existing policies, with a one-time cost not in excess of 300% of the last annual premium paid prior to the date of this Agreement for the applicable D&O Insurance. If such Party for any reason fails to obtain such “tail” insurance policies, (i) the Surviving Corporation shall continue to maintain in effect, for a period of at least six (6) years from and after the Closing, the D&O Insurance in place as of the date of this Agreement with its current insurance carrier or with an insurance carrier with the same or better credit rating as its current D&O Insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope substantially similar to the Company’s existing policies, or (ii) the Surviving Corporation shall provide, or cause to be provided, for a period of not less than six (6) years after the Closing, the D&O 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 Closing from an insurance carrier with the same or better credit rating as the Company’s current D&O Insurance carrier, that is no less favorable than the existing policy of the Company, or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 300% of the annual premium currently paid by the Company Subsidiaryfor 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, with respect to matters occurring prior to the Closing, for a cost not exceeding such amount.
(c) The Offeror shall ensure that all amounts payable under all employment This Section 6.4 is intended to benefit the Indemnified Parties and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsD&O Indemnitees.
(d) This In the event that the Surviving Corporation (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of the Surviving Corporation assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.4.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Broadcom Cayman L.P.)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless to the fullest extent permitted by Law the present and former officers and directors of the Company and its Subsidiaries against all losses, claims, damages and liabilities in respect of acts or omissions occurring at or prior to the Effective Time. Parent shall cause the Surviving Corporation (and its successors) to establish and maintain provisions in its certificate of incorporation and bylaws (or other comparable organizational documents) concerning the indemnification and exoneration of the Company’s former and present officers, directors, employees and agents that are no less favorable to those persons than the provisions of the Company’s certificate of incorporation and bylaws. Parent shall cause the Surviving Corporation to, fulfill and honor in all respects all rights to indemnification, advancement of litigation expenses and limitation of personal liability existing in favor of the directors, officers and employees of the Company and its successor) shall maintain for Subsidiaries under the period from provisions existing on the date of this Agreement in any indemnification agreements between the Company and such individuals and all such provisions shall, with respect to any matter existing or occurring at or prior to the Effective Time until (including the transactions contemplated by this Agreement), survive the Effective Time, and, as of the Effective Time, the Surviving Corporation shall assume all obligations of the Company in respect thereof as to any claim or claims asserted prior to or after the Effective Time.
(b) Prior to the Closing, Parent shall obtain and pay for a directors’ and officers’ liability insurance tail policy, including employment practices and securities liability, for the Company (and the Surviving Corporation as successor in interest) (the “D&O Policy”) with a term of six years thereafter on a "trailing" or "run-off" basisfollowing the date of the Closing and providing for coverage and amounts, a directors' and officers' insurance policy for all present containing terms and former conditions, which are no less advantageous to the directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to than the current directors policies of directors’ and officers of officers’ and liability insurance maintained by the Company and the Company SubsidiaryCompany; provided, provided however, that in no event shall will Parent or the Company Surviving Corporation be required to expend more than an amount per year equal to in excess of 200% of the current annual premiums premium currently paid by the Company for such insurance.
(b) From coverage for the purchase of such tail policy, and after if the Effective Timecost for such coverage is in excess of such amount, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's Parent or the Company Subsidiary's current articles and/or by-lawsSurviving Corporation, which provisions as the case may be, shall not, except only be required to the extent required by applicable Laws, be amended, repealed or otherwise modified maintain such coverage as is available for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors or officers of the Company or the Company Subsidiary, and the Company shall ensure that the obligations of the Company or the Company Subsidiary under any indemnification agreements listed in the Disclosure Letter between the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company Subsidiarysuch amount.
(c) The Offeror shall ensure that all amounts payable under all employment and other agreements in respect of or upon a change of control of the Company set out in the Disclosure Letter are paid in accordance with the provisions of this Section 6.8 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such agreements.
(d) This Section 7.6 shall survive the termination Person may have by contract or otherwise. Table of this Agreement if such termination occurs following the Effective Time.Contents ARTICLE VII
Appears in 1 contract
Samples: Merger Agreement (QRS Corp)
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Parent shall cause the Company (or its successor) shall maintain for Surviving Corporation to indemnify and hold harmless the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring individuals who at any time prior to the Effective Time made prior to or within six years after the Effective Time, on terms and conditions comparable to those applicable to the current directors and officers of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) shall contain the provisions with respect to indemnification set forth in the Company's or the Company Subsidiary's current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, 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, immediately prior to the Effective Time, were directors or officers of the Company or any of their respective present or former Subsidiaries (the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) to the fullest extent permitted by Law and by the bylaws of the Company Subsidiaryand the Surviving Corporation, and the Surviving Corporation shall, Parent shall cause the Surviving Corporation to, promptly advance expenses as incurred to the fullest extent permitted by Law and the bylaws of the Company and the Surviving Corporation. After the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) fulfill and honor to the maximum extent permitted by applicable Law, all rights to exculpation or indemnification for acts or omissions occurring prior to the Effective Time existing as of the Effective Time in favor of directors and officers of the Company, its Subsidiaries or any of their predecessors in their capacity as officers or directors and the heirs, executors, trustees, fiduciaries and administrators of such officer or director (each, a “D&O Indemnitee”), as provided in the Company’s or the applicable Subsidiaries’ respective certificate of incorporation and bylaws (or comparable organizational or governing documents) or in any agreement between such D&O Indemnitee, on one hand, and the Company or its Subsidiaries, on the other hand, in effect as of the date hereof. After the Effective Time, Parent and the Surviving Corporation shall ensure (and Parent shall cause the Surviving Corporation to) fulfill and honor their respective obligations under this Section 6.7(a).
(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, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, the “D&O Insurance”), in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current D&O 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; provided, however, that the obligations Company shall not, and Parent shall not be required to cause the Surviving Corporation to, pay an annual premium for the D&O Insurance in excess of 300% of the annual premium currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Company shall obtain a policy with the greatest coverage reasonably available, with respect to matters occurring at or prior to the Effective Time, for a cost not exceeding such amount. If the Company or the Company Subsidiary Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, (i) the Surviving Corporation shall continue to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date 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 D&O 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 (ii) Parent will cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the D&O Indemnitees who are insured under any indemnification agreements listed in the Disclosure Letter between 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 D&O Insurance carrier, that is no less favorable than the existing policy of the Company or or, if substantially equivalent insurance coverage is unavailable, the best coverage reasonably available; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 300% of the annual premium currently paid by the Company Subsidiary for such insurance; and its directors and officers continue in place 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 reasonably available, with respect to matters occurring at or are assumed by, if applicable, any successor prior to the Company or the Company SubsidiaryEffective Time, for a cost not exceeding such amount.
(c) The Offeror This Section 6.7 is intended to benefit the Indemnified Parties and the D&O Indemnitees, and shall ensure that be binding on all amounts payable under all employment successors and other agreements in respect assigns of or upon a change of control of Parent, Merger Sub, the Company set out in and the Disclosure Letter are paid in accordance with the provisions of such agreementsSurviving Corporation.
(d) This In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume their respective obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.7.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, the Company For a period of not fewer than six (or its successor6) shall maintain for the period from the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as directors or officers of the Company occurring prior to the Effective Time made prior to or within six years after the Effective Time, on terms Parent agrees, and conditions comparable Parent shall use reasonable best efforts to those applicable cause, the Surviving Corporation (or any successor to the current Surviving Corporation) to indemnify, defend and hold harmless the present and former officers and directors and officers of the Company and its Subsidiaries, and persons who become any of the Company Subsidiaryforegoing prior to the Effective Time (the “D&O Indemnified Parties”), against all losses, claims, damages, liabilities, costs, fees and expenses (including reasonable fees and disbursements of counsel and judgments, fines, losses, claims, liabilities and amounts paid in settlement (provided that in no event any such settlement is effected with the written consent of Parent or the Surviving Corporation, which consent shall not unreasonably be withheld)) arising out of or pertaining to actions, omissions or matters existing or occurring at, prior to or after the Company be required Effective Time to expend more than an amount per year equal to 200% the fullest extent permissible under applicable provisions of the current annual premiums paid by DGCL, the Company for such insurance.
terms of the Company’s Organizational Documents, and under any agreements as in effect at the date hereof (b) true and correct copies of which have been previously provided to Parent). From and after the Effective TimeClosing, the Company shall ensure that articles, Certificate of Incorporation and by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) Surviving Corporation shall contain the provisions no less favorable with respect to indemnification the exculpation and indemnifications than those set forth in the Company's or the Company Subsidiary's current articles and/or by-laws’s Organizational Documents, which and such provisions shall not, except to the extent required by applicable Laws, not be amended, repealed or otherwise modified for a period of six (6) years from following the Effective Time Closing Date in any manner that would materially adversely affect the rights thereunder of individuals whoany D&O Indemnified Party; provided, immediately prior 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.
(b) Parent or the Surviving Corporation shall maintain the Company’s existing officers’ and directors’ liability insurance covering those officers, directors and other persons that are currently covered by the Company’s directors’ and officers’ liability insurance policy (“D&O Insurance”) for a period of not fewer than six (6) years after the Effective Time; provided, were directors however, that Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such former directors, officers or officers other persons; provided, further, that if the existing D&O Insurance expires or is terminated or cancelled during such period, then Parent or the Surviving Corporation shall use its reasonable best efforts to obtain substantially similar D&O Insurance; provided, further, that in no event shall Parent be required to pay annual premiums for insurance under this Section 5.11(b) in excess of 200% of the annual premium paid by the Company for such insurance coverage (the sum of such six (6) years of annual premiums, the “Maximum D&O Premium”); and provided, further, that if Parent or the Company SubsidiarySurviving Corporation is unable to obtain the amount of insurance required by this Section 5.11(b) for such aggregate premium, and Parent or the Company Surviving Corporation shall ensure that obtain as much insurance (up to the obligations amount of insurance required by this Section 5.11(b)) as can be obtained for the Maximum D&O Premium. In lieu of the Company foregoing, the Surviving Corporation may obtain a “tail” policy of substantially equivalent coverage and amounts containing terms no less favorable to such former directors, officers or other persons covering events occurring at, prior to or after the Company Subsidiary under any indemnification agreements listed in Effective Time for a period of not fewer than six (6) years after the Disclosure Letter between Effective Time at a cost not to exceed the Company or the Company Subsidiary and its directors and officers continue in place or are assumed by, if applicable, any successor to the Company or the Company SubsidiaryMaximum D&O Premium.
(c) The Offeror shall ensure In the event that Parent, the Surviving Corporation, any of their respective Subsidiaries 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 amounts payable under or substantially all employment of its properties and other agreements assets to any Person, then, and in respect of or upon a change of control each such case, proper provision will be made so that the successors and assigns of the Company Parent, the Surviving Corporation or any such Subsidiary shall succeed to and assume the obligations thereof set out forth in the Disclosure Letter are paid in accordance with the provisions of such agreementsthis Section 5.11.
(d) This Section 7.6 shall survive the termination The provisions of this Agreement if such termination occurs following Section 5.11 are intended to be in addition to the Effective Timerights otherwise available to the current and former officers, directors, employees and agents of the Company and its Subsidiaries by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, the D&O Indemnified Parties, their heirs and personal representatives and shall be binding on the Parent, the Surviving Corporation and their respective successors and assigns.
Appears in 1 contract
Directors’ and Officers’ Insurance and Indemnification. (a) From and after the Effective Time, Parent and the Company Surviving Corporation shall (or its successorand Parent shall cause the Surviving Corporation to) shall maintain for indemnify and hold harmless the period from individuals who at any time prior to the Effective Time until six years thereafter on a "trailing" or "run-off" basis, a directors' and officers' insurance policy for all present and former directors and officers of the Company and the Company Subsidiary, covering claims in respect of acts or omissions in their capacity as were directors or officers of the Company or any of its Subsidiaries (the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions by them in their capacities as such occurring at or prior to the Effective Time made prior to or within six years after (including the Effective Time, on terms and conditions comparable to those applicable transactions contemplated by this Agreement) to the current directors fullest extent permitted by Law, and officers Parent and the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) promptly advance expenses as incurred to the fullest extent permitted by Law. The articles of incorporation and bylaws of the Company and the Company Subsidiary, provided that in no event shall the Company be required to expend more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance.
(b) From and after the Effective Time, the Company shall ensure that articles, by-laws and/or other constating documents of the Company and the Company Subsidiary (or their successors) Surviving Corporation shall contain the provisions with respect to indemnification and advancement of expenses set forth in the Company's or articles of incorporation and bylaws of the Company Subsidiary's current articles and/or by-lawson the date of this Agreement, which provisions shall not, except to the extent required by applicable Laws, 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 whothe Indemnified Parties, immediately unless such modification is required by Law.
(i) The Company shall use commercially reasonable efforts to obtain prior to the Effective TimeTime "tail" insurance policies with a claims period of at least six (6) years from the Effective Time for the Indemnified Parties and any other employees, were directors agents or officers of other individuals otherwise covered by the directors' and officers' liability insurance and fiduciary liability insurance policies maintained by the Company or and the Company's Subsidiaries prior to the date of this Agreement (collectively, the "Insured Parties") in amount and scope at least as favorable as the directors' and officers' liability insurance and fiduciary liability insurance policies maintained by the Company Subsidiary, and the Company's Subsidiaries on the date of this Agreement for matters occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) (a "Qualifying Tail Policy") or (ii) if the Company shall ensure that not have obtained such tail policies (or the obligations substitute policies referred to in clause (A) below) as of the Company Effective Time, Parent shall cause the Surviving Corporation to either, at its election, (x) obtain prior to and have in effect at the Effective Time a Qualifying Tail Policy or (y) maintain in effect for not less than six (6) years from the Effective Time the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by the Company Subsidiary under any indemnification agreements listed and the Company's Subsidiaries for the Insured Parties with respect to matters occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) (provided, however, that Parent and the Surviving Corporation may substitute therefor policies of substantially the same coverage containing terms and conditions that are no less advantageous to the Insured Parties); provided that (A) if the Company elects to obtain tail insurance policies pursuant to clause (i) of this Section 6.6(b), in no event shall the Company obtain such tail insurance policies at a cost of more than $2,250,000 in the Disclosure Letter between aggregate, and, if the aggregate cost of such tail insurance policies would exceed $2,250,000, the Company may elect to obtain tail insurance policies for the Insured Parties with the best coverage as shall then be available at an aggregate premium of $2,250,000 and (B) if Parent is required to cause the Surviving Corporation to maintain insurance pursuant to clause (ii)(y) of this Section 6.6(b), in no event shall Parent be required to expend per year of coverage more than $1,875,000 (the "Maximum Amount") to maintain or procure insurance coverage pursuant to clause (ii)(y) of this Section 6.6(b), and if, notwithstanding the Company Subsidiary and its directors and officers continue in place use of reasonable best efforts to do so, Parent is unable to maintain or are assumed byobtain the insurance called for by clause (ii)(y) of this Section 6.6(b), if applicable, any successor to Parent shall obtain as much comparable insurance as available for the Company or the Company SubsidiaryMaximum Amount.
(c) The Offeror This Section 6.6 is intended to benefit the Insured Parties and the Indemnified Parties, and shall ensure that be binding on all amounts payable under all employment successors and assigns of Parent, Sub, the Company and the Surviving Corporation. Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other agreements in respect obligations pursuant to this Section 6.6 and the articles of or upon a change of control incorporation and bylaws of the Company set out in the Disclosure Letter are paid in accordance with the provisions of such agreementsSurviving Corporation.
(d) This In the event that Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys 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, assigns and transferees of Parent or the Surviving Corporation or their respective successors or assigns, as the case may be, assume the obligations set forth in this Section 7.6 shall survive the termination of this Agreement if such termination occurs following the Effective Time6.6.
Appears in 1 contract
Samples: Merger Agreement (Longview Fibre Co)
