Directors and Officers Insurance; Indemnification. (a) The certificate of incorporation and the by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate of incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law. (b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps (c) In furtherance of and not in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company with respect to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, including, without limitation, any and all such litigation commenced on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of the Company, in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law. (d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Lift Acquisition Co Inc), Merger Agreement (Raymond Corp)
Directors and Officers Insurance; Indemnification. (a) The certificate From and after the Effective Time, the Surviving Corporation shall (or, if necessary, Parent shall take all necessary action to) ensure that the Certificate of incorporation Incorporation and the byBy-laws Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Certificate of incorporation Incorporation and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified PartiesINDEMNIFIED PARTIES"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to (x) matters occurring prior to the performance of their duties as officers and/or directors of the Company under federal Effective Time or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal cause the Parent's, directors' and officers' liability insurance then in effect to acquire the Company, including, without limitation, any and all such litigation commenced cover those persons who are covered on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of by the Company, in 's directors' and officers' liability insurance policy with respect to those matters covered by the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director Company's directors' and officer defendantsofficers' liability policy; provided that neither Parent nor the coverage provided by Parent's insurance shall be no less favorable to the Indemnified Parties and shall provide no fewer rights than the Company's directors' and officers' liability insurance policy currently in place. Notwithstanding anything to the contrary in this Section 4.11, in no event shall the Surviving Corporation be required to expend in any one year an amount in excess of 200% of the annual premiums paid by the Company shall be liable as of the date of this Agreement for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when insurance and if a court of competent jurisdiction shall ultimately determine, and the annual premium for the insurance coverage that would otherwise be required pursuant to this Section 4.11 would exceed such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Timeamount, the Company Surviving Corporation shall remain liable only be obligated to obtain a policy with the greatest coverage available for all of its obligations under the existing indemnification agreements with each a cost not exceeding 200% of the directors and officers of annual premiums currently paid by the Company.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The certificate Certificate of incorporation Incorporation and the byBy-laws Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability for directors and officers of the Company set forth in the Company's certificate Certificate of incorporation Incorporation and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, directors or officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified PartiesINDEMNIFIED PARTIES"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to matters occurring prior to the Effective Time, or (y) cause the Parent's directors' and officers' liability insurance then in effect to cover those persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy (any such insurance under (x) or (y), the performance "D&O Insurance"); provided, that the coverage provided by Parent's insurance shall be no less favorable to the Indemnified Parties and shall provide no fewer rights than the D&O Insurance currently in place, provided further, that, in the case of their duties as officers and/or directors of the Company under federal clause (x) or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal the annual premium for such D&O Insurance coverage would not be in excess of 200% of the last annual premium paid by the Company for its D&O Insurance prior to acquire the Company, including, without limitation, any and all such litigation commenced on or after the date of this Agreement (such 200% amount, the "Subject LitigationMAXIMUM PREMIUM") ). If the existing D&O Insurance expires, is terminated or canceled during such six-year period or if Parent is unable to maintain the Company's existing D&O Insurance for the Maximum Premium, Parent shall be entitled use reasonable best efforts to cause to be represented, at obtained as much D&O Insurance as can be obtained for the reasonable expense remainder of such period for an annualized premium not in excess of the Company, in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable lawMaximum Premium.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Samples: Merger Agreement (Essman Alyn V)
Directors and Officers Insurance; Indemnification. (a) The certificate Articles of incorporation Incorporation and the by-laws of the Surviving Corporation (or Purchaser if this Agreement shall be amended to provide that Purchaser is the Surviving Corporation) shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Articles of incorporation Incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six three years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance policy covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance such policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent the Surviving Corporation be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 44,500 for the twelve month period ending on July 1ended November 25, 19971996 (the "Current Premium"); and provided further further, that if the annual premiums of such insurance coverage exceed such amount150% of the Current Premium, the Surviving Corporation shall be obligated to may, at its option, terminate the existing policy and obtain a policy with the greatest coverage available for a cost not exceeding such amount150% of the Current Premium and containing terms and conditions which are no less advantageous in any material respect to the Company's current and past directors and officers and provided that said substitution does not result in any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time; provided further further, that the Surviving Corporation may substitute for such Company policies, policies policy a policy with at least the same coverage containing terms and conditions which are no less advantageous in any material respect to the Company's current and past directors and officers and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to (x) matters occurring prior to the performance of their duties as officers and/or directors of the Company under federal Effective Time or state law (including litigation under federal and state securities laws) and (y) Subcause Parent's offer or proposal directors' and officers' liability insurance then in effect to acquire the Company, including, without limitation, any and all such litigation commenced cover those persons who are covered on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of by the Company's directors' and officers' liability insurance policy, but only if Parent's policy provides at least the same coverage containing terms and conditions which are no less advantageous in any material respect to the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director Company's current and officer defendants; past directors and officers and provided that neither Parent nor the Company shall be liable for said substitution does not result in any settlement effected without its gaps or lapses in coverage with respect to matters occurring prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The --------------------------------------------------- certificate of incorporation and the by-laws of the Surviving Corporation Company shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate of incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time Closing in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time Closing were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For . Parent agrees that all rights of indemnification now existing in favor of any director, officer, employee, or agent of the subsidiaries of the Company as provided in their respective charters or by-laws on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time,
(b) The Company shall for the Surviving Corporation shall six year period commencing at the Closing either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons Persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, ------------------- -------- ------- that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1323,000; provided further, 1997; and provided further that if ---------------- ---- the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further further, that the Surviving Corporation Company may ---------------- ---- substitute for such the Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gapsgaps or lapses in coverage with respect to matters occurring prior to the Closing or (y) cause the Parent's directors' and officers' liability insurance then in effect to cover those Persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy.
(c) In furtherance Parent agrees to indemnify, and to cause the Company to indemnify, all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of and not in limitation of the preceding paragraphsuch individuals' services as officers, Parent and Sub agree that the officers and directors directors, employees or agents of the Company that are defendants in or any litigation commenced by shareholders of its subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees of the Company with respect or any of its subsidiaries, occurring prior to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, Closing including, without limitation, the transactions contemplated by this Agreement. Without limitation of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including without limitation, the transactions contemplated by this Agreement, occurring prior to, and including, the Closing, Parent, from and after the Closing, will pay as incurred such Indemnified Party's reasonable legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. Subject to Section 5.11(d) below, Parent shall pay all reasonable expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing this Section 5.11 or any action involving an Indemnified Party resulting from the transactions contemplated by this Agreement. If the indemnity provided for in this Section 5.11 is not available with respect to any Indemnified Party, then the Company and the Indemnified Party shall contribute to the amount payable in such litigation commenced on proportion as is appropriate to reflect relative faults and benefits.
(d) Any Indemnified Party wishing to claim indemnification under paragraph (a) or (c) of this Section 5.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the date of this Agreement Closing), (the "Subject Litigation"i) shall be entitled to be represented, at the reasonable expense of the Company, in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor or the Company shall have the right, from and after the Closing, to assume the defense thereof (with counsel engaged by Parent or the Company to be reasonably acceptable to the relevant Indemnified Party) and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, (ii) such Indemnified Party will cooperate in the defense of any such matter and (iii) Parent or the Company shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parentconsent; and provided further that neither Parent nor the Company shall not have any obligation hereunder to any officer/director defendant Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealablefinal, that the indemnification of such officer/director defendant Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The certificate Certificate of incorporation Incorporation and the byBy-laws Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability for directors and officers of the Company set forth in the Company's certificate Certificate of incorporation Incorporation and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, directors or officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified PartiesINDEMNIFIED PARTIES"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions condtions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to matters occurring prior to the Effective Time, or (y) cause the Parent's directors' and officers' liability insurance then in effect to cover those persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy (any such insurance under (x) or (y), the performance "D&O Insurance"); provided, that the coverage provided by Parent's insurance shall be no less favorable to the Indemnified Parties and shall provide no fewer rights than the D&O Insurance currently in place, provided further, that, in the case of their duties as officers and/or directors of the Company under federal clause (x) or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal the annual premium for such D&O Insurance coverage would not be in excess of 200% of the last annual premium paid by the Company for its D&O Insurance prior to acquire the Company, including, without limitation, any and all such litigation commenced on or after the date of this Agreement (such 200% amount, the "Subject LitigationMAXIMUM PREMIUM") ). If the existing D&O Insurance expires, is terminated or canceled during such six-year period or if Parent is unable to maintain the Company's existing D&O Insurance for the Maximum Premium, Parent shall be entitled use reasonable best efforts to cause to be represented, at obtained as much D&O Insurance as can be obtained for the reasonable expense remainder of such period for an annualized premium not in excess of the Company, in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable lawMaximum Premium.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Samples: Merger Agreement (Cpi Corp)
Directors and Officers Insurance; Indemnification. (a) The certificate articles of incorporation and the by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Amended and Restated Articles of incorporation Incorporation (as amended) and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation Parent shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); providedPROVIDED, howeverHOWEVER, that in no event shall Parent be required to expend in any one year an amount in excess of 150200% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 107,000 for the twelve month period ending on July 1December 31, 19971999; and provided further and, PROVIDED, FURTHER, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amountamount and to give prompt written notice of any reduction in the amount or scope of coverage resulting therefrom to the directors and officers affected thereby; provided further PROVIDED FURTHER, that the Surviving Corporation Parent may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gapsgaps or lapses in coverage with respect to matters occurring prior to the Effective Time or (y) cause the Parent's, directors' and officers' liability insurance then in effect to cover those persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy.
(c) In furtherance Parent agrees, from and after the date of purchase of shares of Common Stock pursuant to the Offer, to indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and not in limitation omissions arising out of the preceding paragraphsuch individuals' services as officers, Parent and Sub agree that the officers and directors directors, employees or agents of the Company that are defendants in or any litigation commenced by shareholders of its subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, the Company with respect or any of its subsidiaries, occurring prior to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, Effective Time including, without limitation, the transactions contemplated by this Agreement. Without limitation of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including without limitation, the transactions contemplated by this Agreement, occurring prior to, and all such litigation commenced on or including, the Effective Time, Parent, from and after the date of purchase of shares of Common Stock pursuant to the Offer, will pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. Parent shall pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing this Agreement Section 4.11 or any action involving an Indemnified Party resulting from the transactions contemplated by this Agreement. If for any reason the indemnification provided for in this Section 4.11 is unavailable with respect to any Indemnified Party or insufficient to hold him or her harmless with respect to any such loss, claim, damage or liability, then Parent shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect (i) the "Subject Litigation") shall be entitled to be represented, at the reasonable expense relative economic interests of the Company, Company and its affiliates on the one hand and Parent on the other in connection with the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of Offer and the Merger to which such counsel shall be selected by a plurality loss, claim, damage or liability relates, (ii) the relative fault of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without and its prior written consent (which consent shall not be unreasonably withheld) affiliates on the one hand and that a condition Parent on the other with respect to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determineloss, claim, damage or liability, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law(iii) any other relevant equitable considerations.
(d) At This Section 4.11 shall survive the Effective Timeconsummation of the Merger, is intended to benefit the Company, Parent, the Company Surviving Corporation and the Indemnified Parties, and shall remain liable for be binding on all successors and assigns of its obligations under Parent and the existing indemnification agreements with each of the directors and officers of the CompanySurviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Geon Co)
Directors and Officers Insurance; Indemnification. (a) The certificate of incorporation and the by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate of incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gapsgaps or lapses in coverage with respect to matters occurring prior to the Effective Time or (y) cause the Parent's, directors' and officers' liability insurance then in effect to cover those persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy.
(c) In furtherance of and not in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company with respect to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, including, without limitation, any and all such litigation commenced on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of the Company, in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Samples: Merger Agreement (Raymond Corp)
Directors and Officers Insurance; Indemnification. (a) The certificate From and after the Effective Time, the Surviving Corporation shall (or, if necessary, Parent shall take all necessary action to) ensure that the Certificate of incorporation Incorporation and the byBy-laws Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Certificate of incorporation Incorporation and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to (x) matters occurring prior to the performance of their duties as officers and/or directors of the Company under federal Effective Time or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal cause the Parent's, directors' and officers' liability insurance then in effect to acquire the Company, including, without limitation, any and all such litigation commenced cover those persons who are covered on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of by the Company, in 's directors' and officers' liability insurance policy with respect to those matters covered by the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director Company's directors' and officer defendantsofficers' liability policy; provided that neither Parent nor the coverage provided by Parent's insurance shall be no less favorable to the Indemnified Parties and shall provide no fewer rights than the Company's directors' and officers' liability insurance policy currently in place. Notwithstanding anything to the contrary in this Section 4.11, in no event shall the Surviving Corporation be required to expend in any one year an amount in excess of 200% of the annual premiums paid by the Company shall be liable as of the date of this Agreement for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when insurance and if a court of competent jurisdiction shall ultimately determine, and the annual premium for the insurance coverage that would otherwise be required pursuant to this Section 4.11 would exceed such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Timeamount, the Company Surviving Corporation shall remain liable only be obligated to obtain a policy with the greatest coverage available for all of its obligations under the existing indemnification agreements with each a cost not exceeding 200% of the directors and officers of annual premiums currently paid by the Company.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The certificate of incorporation and the by-laws of Parent agrees to cause the Surviving Corporation shall contain (i) not to change, unless required to do so by Law, for six years after the Effective Time, the provisions with respect to of its Articles of Incorporation and Bylaws or the indemnification and exculpation from liability set forth agreements listed on Section 7.05(a) of the Company Disclosure Schedule in the Company's certificate of incorporation and by-laws effect on the date of the Closing (the "Indemnification Agreements") in each case relating to indemnification of such present or former director or officer of the Company and the Subsidiary (together with any successor by operation of law, individually, an "Indemnified Person" and, collectively, the "Indemnified Persons") in a manner that adversely affects the rights of such Indemnified Person to indemnification thereunder, and (ii) to perform its obligations under the Indemnification Agreements, or exercise any discretionary authority thereunder, to the fullest extent permissible by Law to provide such Indemnified Person with all rights to indemnification available thereunder. Notwithstanding the foregoing, nothing in this AgreementAgreement shall constitute a waiver of, which provisions shall not be amended, repealed or otherwise modified for a period operate to adversely affect, the existing rights of six years from the Effective Time Indemnified Persons under the Articles of Incorporation and Bylaws of the Company in any manner that would adversely affect effect on the rights thereunder date of individuals who on or prior the Closing and the Indemnification Agreements relating to the Effective Time were directors, officers, employees or agents indemnification of the Company, unless such modification is required by lawany Indemnified Person.
(b) For Parent agrees that, for six years from after the Effective TimeClosing, the Surviving Corporation shall either (x) maintain in effect officers' and directors' liability insurance policies indemnifying and holding harmless the Indemnified Persons that were covered by such insurance prior to Closing with respect to any actions or omissions occurring prior to the Closing, providing at least $5,000,000 insurance coverage on terms no less advantageous to such persons than the Company's current directors' and officers' liability insurance existing policy covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties")such persons; provided, however, provided that in no the event shall Parent be required to expend in any one claim is asserted or made within such six-year an amount in excess of 150% of the annual premiums currently paid by the Company for period, coverage under such insurance which the Company represents to shall be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums continued in respect thereof until final disposition of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gapsclaim.
(c) In furtherance of and not in limitation of This Section 7.05 shall survive the preceding paragraphClosing, Parent and Sub agree that the officers and directors of is intended to benefit the Company that are defendants in any litigation commenced by shareholders and the Indemnified Persons (each of the Company with respect to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, including, without limitation, any and all such litigation commenced on or after the date of this Agreement (the "Subject Litigation") whom shall be entitled to be representedenforce this Section 7.05 against Parent, at Merger Sub or the reasonable expense of Surviving Corporation, as the Companycase may be), in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel and shall be selected by a plurality binding on all successors and assigns of such director Parent and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable lawSurviving Corporation.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The --------------------------------------------------- certificate of incorporation and the by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate of incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For . Parent agrees that all rights of indemnification now existing in favor of any director, officer, employee, or agent of the subsidiaries of the Company as provided in their respective charters or by-laws on the date of this Agreement shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time, the .
(b) The Surviving Corporation shall for the six year period commencing on the Effective Time either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons Persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no ------------------- -------- ------- event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1323,000; provided further, 1997; and provided further that if the ---------------- ---- annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further further, that the ---------------- ---- Surviving Corporation may substitute for such the Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gapsgaps or lapses in coverage with respect to matters occurring prior to the Effective Time or (y) cause the Parent's directors' and officers' liability insurance then in effect to cover those Persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy.
(c) In furtherance Parent agrees to indemnify, and to cause the Surviving Corporation to indemnify, all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and omissions arising out of and not in limitation of the preceding paragraphsuch individuals' services as officers, Parent and Sub agree that the officers and directors directors, employees or agents of the Company that are defendants in or any litigation commenced by shareholders of its subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees of the Company with respect or any of its subsidiaries, occurring prior to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, Effective Time including, without limitation, the transactions contemplated by this Agreement. Without limitation of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including without limitation, the transactions contemplated by this Agreement, occurring prior to, and including, the Effective Time, Parent, from and after the Effective Time, will pay as incurred such Indemnified Party's reasonable legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. Subject to Section 5.13(d) below, Parent shall pay all reasonable expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing this Section 5.13 or any action involving an Indemnified Party resulting from the transactions contemplated by this Agreement. If the indemnity provided for in this Section 5.13 is not available with respect to any Indemnified Party, then the Surviving Corporation and the Indemnified Party shall contribute to the amount payable in such litigation commenced on proportion as is appropriate to reflect relative faults and benefits.
(d) Any Indemnified Party wishing to claim indemnification under paragraph (a) or (c) of this Section 5.13, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the date of this Agreement Effective Time), (i) Parent or the "Subject Litigation") Surviving Corporation shall be entitled have the right, from and after the Effective Time, to assume the defense thereof (with counsel engaged by Parent or the Surviving Corporation to be representedreasonably acceptable to the relevant Indemnified Party) and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, at the reasonable expense of the Company, (ii) such Indemnified Party will cooperate in the Subject Litigation by one counsel defense of any such matter and (including, if appropriate, one local counsel in each jurisdiction in which a case is pendingiii) each of which such counsel Parent or the Surviving Corporation shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor the Company shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parentconsent; and provided further that neither Parent nor the Company shall not have any obligation hereunder to any officer/director defendant Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealablefinal, that the indemnification of such officer/director defendant Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Time, the Company shall remain liable for all of its obligations under the existing indemnification agreements with each of the directors and officers of the Company.
Appears in 1 contract
Samples: Merger Agreement (Royal Ahold)
Directors and Officers Insurance; Indemnification. (a) The certificate articles --------------------------------------------------- of incorporation and the by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Amended and Restated Articles of incorporation Incorporation (as amended) and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation Parent shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent be required to -------- ------- expend in any one year an amount in excess of 150200% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 107,000 for the twelve month period ending on July 1December 31, 19971999; and provided further and, provided, -------- further, that if the annual premiums of such insurance coverage exceed such ------- amount, the Surviving Corporation Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amountamount and to give prompt written notice of any reduction in the amount or scope of coverage resulting therefrom to the directors and officers affected thereby; provided further further, that the Surviving Corporation Parent may -------- ------- substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gapsgaps or lapses in coverage with respect to matters occurring prior to the Effective Time or (y) cause the Parent's, directors' and officers' liability insurance then in effect to cover those persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy with respect to those matters covered by the Company's directors' and officers' liability policy.
(c) In furtherance Parent agrees, from and after the date of purchase of shares of Common Stock pursuant to the Offer, to indemnify all Indemnified Parties to the fullest extent permitted by applicable law with respect to all acts and not in limitation omissions arising out of the preceding paragraphsuch individuals' services as officers, Parent and Sub agree that the officers and directors directors, employees or agents of the Company that are defendants in or any litigation commenced by shareholders of its subsidiaries or as trustees or fiduciaries of any plan for the benefit of employees, or otherwise on behalf of, the Company with respect or any of its subsidiaries, occurring prior to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, Effective Time including, without limitation, the transactions contemplated by this Agreement. Without limitation of the foregoing, in the event any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including without limitation, the transactions contemplated by this Agreement, occurring prior to, and all such litigation commenced on or including, the Effective Time, Parent, from and after the date of purchase of shares of Common Stock pursuant to the Offer, will pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. Parent shall pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Party in enforcing this Agreement Section 4.11 or any action involving an Indemnified Party resulting from the transactions contemplated by this Agreement. If for any reason the indemnification provided for in this Section 4.11 is unavailable with respect to any Indemnified Party or insufficient to hold him or her harmless with respect to any such loss, claim, damage or liability, then Parent shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect (i) the "Subject Litigation") shall be entitled to be represented, at the reasonable expense relative economic interests of the Company, Company and its affiliates on the one hand and Parent on the other in connection with the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of Offer and the Merger to which such counsel shall be selected by a plurality loss, claim, damage or liability relates, (ii) the relative fault of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without and its prior written consent (which consent shall not be unreasonably withheld) affiliates on the one hand and that a condition Parent on the other with respect to the indemnification payments provided in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determineloss, claim, damage or liability, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable law(iii) any other relevant equitable considerations.
(d) At This Section 4.11 shall survive the Effective Timeconsummation of the Merger, is intended to benefit the Company, Parent, the Company Surviving Corporation and the Indemnified Parties, and shall remain liable for be binding on all successors and assigns of its obligations under Parent and the existing indemnification agreements with each of the directors and officers of the CompanySurviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Osullivan Corp)
Directors and Officers Insurance; Indemnification. (a) The certificate Articles of incorporation Incorporation and the byBy-laws Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Amended and Restated Articles of incorporation Incorporation and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to (x) matters occurring prior to the performance of their duties as officers and/or directors of the Company under federal Effective Time or state law (including litigation under federal and state securities laws) and (y) Subcause Parent's offer or proposal directors' and officers' liability insurance then in effect to acquire the Company, including, without limitation, any and all such litigation commenced cover those persons who are covered on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of by the Company, in 's directors' and officers' liability insurance policy with respect to those matters covered by the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director Company's directors' and officer defendantsofficers' liability policy; provided that neither Parent nor the coverage provided by Parent's insurance shall be no less favorable to the Indemnified Parties and shall provide no fewer rights than the Company's directors' and officers' liability insurance policy currently in place; provided, further, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 4.10(b) more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance; provided, further, that if the annual premiums exceed such amount, the Surviving Corporation shall be liable required to obtain a policy with the greatest coverage available for any settlement effected without its prior written consent (which consent shall a cost not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that exceeding such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable lawamount.
(dc) At It is understood and agreed that the Effective Timedirectors, officers, employees and agents of the Company shall remain liable for all of its obligations under immediately prior to the existing indemnification agreements with each consummation of the directors and officers Offer shall be third party beneficiaries of the Companythis Section 4.10.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The certificate --------------------------------------------------- Articles of incorporation Incorporation and the byBy-laws Laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate Amended and Restated Articles of incorporation Incorporation and byBy-laws Laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); provided, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not gaps or lapses in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company coverage with respect to (x) matters occurring prior to the performance of their duties as officers and/or directors of the Company under federal Effective Time or state law (including litigation under federal and state securities laws) and (y) Subcause Parent's offer or proposal directors' and officers' liability insurance then in effect to acquire the Company, including, without limitation, any and all such litigation commenced cover those persons who are covered on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of by the Company, in 's directors' and officers' liability insurance policy with respect to those matters covered by the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director Company's directors' and officer defendantsofficers' liability policy; provided that neither Parent nor the coverage provided by Parent's insurance shall be no less favorable to the Indemnified Parties and shall provide no fewer rights than the Company's directors' and officers' liability insurance policy currently in place; provided, further, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 4.10(b) more than an amount per year equal to 200% of the current annual premiums paid by the Company for such insurance; provided, further, that if the annual premiums exceed such amount, the Surviving Corporation shall be liable required to obtain a policy with the greatest coverage available for any settlement effected without its prior written consent (which consent shall a cost not be unreasonably withheld) and that a condition to the indemnification payments provided in Section 4.12(a) hereof shall be that exceeding such officer/director defendant not have settled any Subject Litigation without the consent of Parent; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable lawamount.
(dc) At It is understood and agreed that the Effective Timedirectors, officers, employees and agents of the Company shall remain liable for all of its obligations under immediately prior to the existing indemnification agreements with each consummation of the directors and officers Offer shall be third party beneficiaries of the Companythis Section 4.10.
Appears in 1 contract
Directors and Officers Insurance; Indemnification. (a) The certificate of incorporation and the by-laws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's certificate of incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) For six years from after the Effective Time, E-Stamp shall indemnify, defend and hold harmless each current and former officer or director of Learn2 or any Learn2 Subsidiary 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 any such settlement is effected with the written consent of E-Stamp or the Surviving Corporation shall either (x) maintain in effect the Company's current directors' and officers' liability insurance covering those persons who are currently covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) (the "Indemnified Parties"); providedCorporation, however, that in no event shall Parent be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance which the Company represents to be $80,050 for the twelve month period ending on July 1, 1997; and provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute for such Company policies, policies with at least the same coverage containing terms and conditions which are no less advantageous and provided that said substitution does not result in any gaps
(c) In furtherance of and not in limitation of the preceding paragraph, Parent and Sub agree that the officers and directors of the Company that are defendants in any litigation commenced by shareholders of the Company with respect to (x) the performance of their duties as officers and/or directors of the Company under federal or state law (including litigation under federal and state securities laws) and (y) Sub's offer or proposal to acquire the Company, including, without limitation, any and all such litigation commenced on or after the date of this Agreement (the "Subject Litigation") shall be entitled to be represented, at the reasonable expense of the Company, in the Subject Litigation by one counsel (including, if appropriate, one local counsel in each jurisdiction in which a case is pending) each of which such counsel shall be selected by a plurality of such director and officer defendants; provided that neither Parent nor the Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and that a condition arising out of actions or omissions occurring at or prior to the indemnification payments provided Effective Time to the full extent required under applicable Delaware Law, the terms of the certificate of incorporation or by-laws of Learn2, as in Section 4.12(a) hereof shall be that such officer/director defendant not have settled any Subject Litigation without effect at the consent of Parentdate hereof; and provided further that neither Parent nor the Company shall have any obligation hereunder to any officer/director defendant when and if a court of competent jurisdiction shall ultimately determineprovided, and such determination shall have become final and non-appealablethat, that indemnification of such officer/director defendant in the manner contemplated hereby is prohibited by applicable lawevent 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.
(db) At E-Stamp or the Surviving Corporation shall maintain Learn2's existing officers' and directors' liability insurance for a period of not less than six years after the Effective TimeDate; provided, that E-Stamp may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to the Company former directors or officers of Learn2 to which such insurance applies; provided, further, that in no event shall remain liable E-Stamp or the Surviving Corporation be required to pay aggregate premiums for all insurance under this Section 5.12(b) in excess of its obligations under the existing indemnification agreements with each 200% of the directors aggregate premiums paid by Learn2 in 2000 on an annualized basis for such purpose; and officers provided, further, that if E-Stamp or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 5.12(b) for such aggregate premium, E-Stamp or the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of 200% of the Companyaggregate premiums paid by Learn2 in 2000 on an annualized basis for such purpose.
Appears in 1 contract
Samples: Merger Agreement (Learn2 Com Inc)
