Indemnification and Directors’ and Officers’ Insurance. (a) From and after the consummation of the Offer, Gambrinus and Parent will, and will cause the Surviving Corporation (or any successor to the Surviving Corporation) to, fulfill and honor in all respects the obligations of the Company pursuant to (i) each indemnification agreement in effect at such time between the Company and each person who is or was a director or officer of the Company at or any time prior to the Effective Time and (ii) any indemnification provisions under the Company's Restated Articles of Incorporation or Bylaws as each is in effect on the date of this Agreement (the persons to be indemnified pursuant to the agreements or provisions referred to in clauses (i) and (ii) of this Section 6.6(a) shall be referred to as, collectively, the "Indemnified Parties"). The Articles of Incorporation and Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Articles of Incorporation and Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party. (b) Gambrinus, Parent or the Surviving Corporation shall maintain or extend the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six years after the Effective Time; provided, that Parent may substitute therefor policies of substantially equivalent coverage and amounts, including extension or tail coverage policies, containing terms substantially as favorable to such former directors or officers; provided, further, that if the existing D&O Insurance expires, is terminated or canceled during such period, Parent or the Surviving Corporation will use all reasonable efforts to obtain substantially similar D&O Insurance coverage; provided, further, however, that in no event shall Parent be required to pay aggregate premiums for insurance under this Section 6.6(b) in excess of 150% of the average of the aggregate premiums paid by the Company in 1995, 1996 and 1997 on an annualized basis for such purpose (the "Average Premium"), which true and correct amounts are set forth in Section 6.6(b) of the Company Disclosure Schedule; and provided, further, that if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 6.6(b) for such aggregate premium, Gambrinus, Parent or the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of 150% of the Average Premium. (c) This Section 6.6 will survive the consummation of the Merger at the Effective Time, is intended to be for the benefit of, and enforceable by, the Company, Parent, the Surviving Corporation and each Indemnified Party and such Indemnified Party's heirs and representatives, and shall be binding on all successors and assigns of Parent and the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Petes Brewing Co)
Indemnification and Directors’ and Officers’ Insurance. (a) From and after the consummation of the OfferFirst Effective Time, Gambrinus and Parent willSPAC shall, and will shall cause the Surviving Corporation (or any successor to the Surviving Corporation) Entity to, fulfill indemnify and honor in all respects the obligations hold harmless each present and former director, manager and officer of the Company pursuant to (ix) each indemnification agreement in effect at such time between the Company and each person who is of its Subsidiaries, and (y) SPAC and each of its Subsidiaries, against any costs or was a director expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or officer liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of the Company or pertaining to matters existing or occurring at or any time prior to the First Effective Time Time, whether asserted or claimed prior to, at or after the First Effective Time, to the fullest extent that the Company or its Subsidiaries, or SPAC and (ii) any indemnification provisions each of its Subsidiaries, as applicable, would have been permitted under the Company's Restated Articles of Incorporation or Bylaws as each is applicable Law and their respective Organizational Documents in effect on the date of this Agreement to indemnify such Person (including the persons to be indemnified pursuant advancing of expenses as incurred to the agreements or provisions referred to in clauses fullest extent permitted under applicable Law). Without limiting the foregoing, SPAC shall, and shall cause its Subsidiaries and the Surviving Entity and each of its Subsidiaries to, (i) and (ii) of this Section 6.6(a) shall be referred to as, collectively, the "Indemnified Parties"). The Articles of Incorporation and Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Articles of Incorporation and Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party.
(b) Gambrinus, Parent or the Surviving Corporation shall maintain or extend the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six (6) years after from the First Effective Time provisions in their respective Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors/managers that are no less favorable to those Persons than the provisions of such Organizational Documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) The Company shall or shall cause one or more of its Subsidiaries to purchase, at or prior to the Closing, and SPAC shall or shall cause one or more of its Subsidiaries to maintain in effect for a period of six (6) years from the First Effective Time; provided, that Parent may substitute therefor directors’ and officers’ liability insurance covering those Persons who are currently covered by (x) the Company’s or any of its Subsidiaries’ and/or (y) SPAC’s or any of its Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of substantially equivalent coverage and amounts, including extension which have been heretofore made available to SPAC or tail coverage policies, containing its representatives) on terms substantially as not less favorable to than the terms of such former directors or officers; provided, further, that if the existing D&O Insurance expires, is terminated or canceled during such period, Parent or the Surviving Corporation will use all reasonable efforts to obtain substantially similar D&O Insurance current insurance coverage; provided, further, however, that in no event shall Parent (i) SPAC may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the First Effective Time and (ii) if any claim is asserted or made within such six-year period, any insurance required to pay aggregate premiums for insurance be maintained under this Section 6.6(b) 7.01 shall be continued in excess respect of 150% of such claim until the average of the aggregate premiums paid by the Company in 1995, 1996 and 1997 on an annualized basis for such purpose (the "Average Premium"), which true and correct amounts are set forth in Section 6.6(b) of the Company Disclosure Schedule; and provided, further, that if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 6.6(b) for such aggregate premium, Gambrinus, Parent or the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of 150% of the Average Premiumfinal disposition thereof.
(c) This Notwithstanding anything contained in this Agreement to the contrary, this Section 6.6 will 7.01 shall survive the consummation of the Merger at the Effective TimeMergers indefinitely and shall be binding, is intended to be for the benefit ofjointly and severally, and enforceable by, the Company, Parenton SPAC, the Surviving Corporation Entity and each Indemnified Party and such Indemnified Party's heirs and representatives, and shall be binding on all successors and assigns of Parent SPAC and the Surviving CorporationEntity. If SPAC or the Surviving Entity or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of SPAC or the Surviving Entity, as the case may be, shall succeed to the obligations set forth in this Section 7.01.
Appears in 1 contract
Indemnification and Directors’ and Officers’ Insurance. (a) From and after the consummation of the OfferEffective Times, Gambrinus and Parent willNew Covalto shall, and will shall cause the Surviving Corporation (or any successor to the Surviving Corporation) Entities to, fulfill indemnify and honor in all respects the obligations of the Company pursuant to (i) hold harmless each indemnification agreement in effect at such time between the Company present and each person who is or was a director or former director, manager and officer of the Company and LIVB and each of their respective Subsidiaries, each in their capacity as such, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or any time prior to the LIVB Effective Time and (ii) any indemnification provisions under Time, whether asserted or claimed prior to, at or after the LIVB Effective Time, to the fullest extent that the Company's Restated Articles , LIVB or its Subsidiaries would have been permitted under applicable Law and their respective certificate of Incorporation incorporation, bylaws or Bylaws as each is other organizational documents in effect on the date of this Agreement to indemnify such Person (including the persons to be indemnified pursuant advancing of expenses as incurred to the agreements or provisions referred to in clauses fullest extent permitted under applicable Law). Without limiting the foregoing, from and after the LIVB Effective Time, New Covalto shall cause the Surviving Entities and each of their respective Subsidiaries to, (i) and (ii) of this Section 6.6(a) shall be referred to as, collectively, the "Indemnified Parties"). The Articles of Incorporation and Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Articles of Incorporation and Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party.
(b) Gambrinus, Parent or the Surviving Corporation shall maintain or extend the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six years after from the LIVB Effective Time provisions in its certificate of incorporation, bylaws and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors/managers that are no less favorable to those Persons than the provisions of such certificates of incorporation, bylaws and other organizational documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) The Company shall or shall cause one or more of their respective Subsidiaries to purchase, at or prior to the Closing, and New Covalto shall or shall cause one or more of its Subsidiaries to maintain in effect for a period of six years from the LIVB Effective Time; provided, that Parent may substitute therefor directors’ and officers’ liability insurance covering those Persons who are currently covered by the Company’s, LIVB’s or any of their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of substantially equivalent coverage and amountswhich have been heretofore made available to the other Parties hereto or their respective agents or representatives) on terms not less favorable than the terms of such current insurance coverage, including extension or tail coverage policies, containing terms substantially as favorable to such former directors or officers; provided, further, that if the existing D&O Insurance expires, is terminated or canceled during such period, Parent or the Surviving Corporation will use all reasonable efforts to obtain substantially similar D&O Insurance coverage; provided, further, however, except that in no event shall Parent New Covalto or its Subsidiaries be required to pay an aggregate premiums premium for such insurance under this Section 6.6(b) in excess of 150300% of the average of annual premium payable in the aggregate premiums paid by the Company in 1995Company, 1996 LIVB and 1997 on an annualized basis their respective Subsidiaries for such purpose insurance policy for the year ended December 31, 2021; provided, however, that (i) New Covalto may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the LIVB Effective Times (the "Average Premium")“D&O Tail”) and (ii) if any claim is asserted or made within such six-year period, which true and correct amounts are set forth in Section 6.6(b) of the Company Disclosure Schedule; and provided, further, that if Parent or the Surviving Corporation is unable to obtain the amount of any insurance required by to be maintained under this Section 6.6(b) for Section 8.5 shall be continued in respect of such aggregate premium, Gambrinus, Parent or claim until the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of 150% of the Average Premiumfinal disposition thereof.
(c) This Section 6.6 will Notwithstanding anything contained in this Agreement to the contrary, this Section 8.5 shall survive the consummation of the Merger at the Effective Time, is intended to be for the benefit of, and enforceable by, the Company, Parent, the Surviving Corporation and each Indemnified Party and such Indemnified Party's heirs and representatives, indefinitely and shall be binding binding, jointly and severally, on New Covalto, the other Surviving Entities and all successors and assigns of Parent New Covalto and the other Surviving CorporationEntities. If New Covalto or the other Surviving Entities or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of New Covalto or the other Surviving Entities, as the case may be, shall succeed to the obligations set forth in this Section 8.5.
Appears in 1 contract
Samples: Business Combination Agreement (LIV Capital Acquisition Corp. II)
Indemnification and Directors’ and Officers’ Insurance. (a) From and after the consummation of the Offer, Gambrinus and Parent will, and will cause the Surviving Corporation (or any successor to the Surviving Corporation) to, fulfill and honor in all respects the obligations of the Company pursuant to (i) each indemnification agreement in effect at such time between the Company and each person who is or was a director or officer of the Company at or any time prior to the Effective Time and (ii) any indemnification provisions under the Company's Restated Articles of Incorporation or Bylaws as each is in effect on the date of this Agreement (the persons to be indemnified pursuant to the agreements or provisions referred to in clauses (i) and (ii) of this Section 6.6(a) shall be referred to as, collectively, the "Indemnified Parties"). The Articles of Incorporation and Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Articles of Incorporation and Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party.
(b) Gambrinus, Parent or the Surviving Corporation shall maintain or extend the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six years from the Effective Time, Acquiror shall cause the Surviving Corporation to indemnify and hold harmless each present and former director, manager and officer (as applicable) of the Company and each of its Subsidiaries (the “Company D&O Persons”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time; provided, to the fullest extent that Parent may substitute therefor policies such Company D&O Person would have been entitled to indemnification (including the advancement of substantially equivalent coverage expenses) from the Company or its Subsidiaries under applicable Law and amountstheir respective certificate of incorporation, including extension bylaws, indemnification agreements, or tail coverage policiesother organizational documents in effect on the date of this Agreement. Without limiting the foregoing, containing terms substantially as favorable to such former directors or officers; provided, further, that if the existing D&O Insurance expires, is terminated or canceled during such period, Parent or Acquiror shall cause the Surviving Corporation will use all reasonable efforts and each of its Subsidiaries to, (i) maintain for a period of not less than six years from the Effective Time provisions in its certificate of incorporation, bylaws, indemnification agreements and other organizational documents concerning the indemnification and exoneration (including provisions relating to obtain substantially similar D&O Insurance expense advancement) of officers and directors/managers (as applicable) that are no less favorable to those Persons than the provisions of such certificates of incorporation, bylaws, indemnification agreements and other organizational documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) For a period of six years from the Effective Time, Acquiror shall or shall cause one or more of its Subsidiaries to maintain, without any lapses in coverage; provided, furtherin effect directors’ and officers’ liability insurance covering such Persons who are currently covered by the Company’s or any of its Subsidiaries’ directors’ and officers’ liability insurance policies (true, howevercorrect and complete copies of which have been heretofore made available to Acquiror or its Representatives) on terms (with respect to coverage and amount) not less favorable to the insured than the terms of such current insurance coverage, except that in no event shall Parent Acquiror or its Subsidiaries be required to pay aggregate premiums an annual premium for such insurance under this Section 6.6(b) in excess of 150% two hundred and fifty percent (250%) of the average of the aggregate premiums most recent annual premium paid by the Company and its Subsidiaries prior to the date of this Agreement (such amount the “Company D&O Premium Cap”, and, in 1995, 1996 and 1997 on an annualized basis for such purpose (the "Average Premium"), which true and correct amounts are set forth event the annual premium is in Section 6.6(b) excess of the Company Disclosure ScheduleD&O Premium Cap, Acquiror or its Subsidiaries shall purchase the maximum coverage available for the Company D&O Premium Cap; and provided, furtherhowever, that (i) Acquiror may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not less favorable (with respect to coverage and amount) to the insured than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Effective Time (the “D&O Tail”) and (ii) if Parent any claim is asserted or the Surviving Corporation is unable to obtain the amount of made within such six-year period, any insurance required by to be maintained under this Section 6.6(b) for 7.01 shall be continued in respect of such aggregate premiumclaim until the final disposition thereof. If purchased, Gambrinus, Parent or the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not use its reasonable best efforts to maintain the D&O Tail in excess of 150% of the Average Premiumfull force and effect.
(c) This Notwithstanding anything contained in this Agreement to the contrary, this Section 6.6 will 7.01 shall survive the consummation of the Merger at the Effective Timeindefinitely and shall be binding, is intended to be for the benefit ofjointly and severally, on Acquiror and enforceable by, the Company, Parent, the Surviving Corporation and all successors and assigns of Acquiror and the Surviving Corporation. In the event that Acquiror or the Surviving Corporation or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each Indemnified Party such case, proper provision shall be made so that the successors and such Indemnified Party's heirs assigns of Acquiror or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 7.01.
(d) The Company D&O Persons entitled to the indemnification, liability limitation, exculpation and representatives, insurance set forth in this Section 7.01 are intended to be third-party beneficiaries of this Section 7.01. This Section 7.01 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of Parent Acquiror and the Surviving Corporation.
Appears in 1 contract
Indemnification and Directors’ and Officers’ Insurance. (a) From and after the consummation of the OfferReorganization Effective Time or Acquisition Effective Time, Gambrinus as applicable, Pubco shall and Parent will, and will shall cause the Surviving Reorganization Corporation (or any successor to and the Surviving Corporation) to, fulfill Acquisition Corporation to indemnify and honor in all respects the obligations of the Company pursuant to (i) hold harmless each indemnification agreement in effect at such time between the Company current and each person who is or was a former director or and officer of the Company and Acquiror and each of their respective Subsidiaries (the “D&O Indemnitees”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, claims, damages or losses incurred in connection with any claim, Action or threatened Action, whether civil, criminal, administrative, investigative or otherwise, arising out of or pertaining to matters existing or occurring at or any time prior to the Reorganization Effective Time and (ii) any indemnification provisions under or Acquisition Effective Time, as applicable, whether asserted or claimed prior to, at or after the Company's Restated Articles of Incorporation Reorganization Effective Time or Bylaws Acquisition Effective Time, as each is in effect on the date of this Agreement (the persons to be indemnified pursuant applicable, to the agreements or provisions referred fullest extent permitted under applicable Law (including the advancing of expenses as incurred to in clauses the fullest extent permitted under applicable Law). Without limiting the foregoing, Pubco shall and shall cause each of its Subsidiaries to, (i) and (ii) of this Section 6.6(a) shall be referred to as, collectively, the "Indemnified Parties"). The Articles of Incorporation and Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Articles of Incorporation and Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party.
(b) Gambrinus, Parent or the Surviving Corporation shall maintain or extend the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six years after from the Reorganization Effective Time or the Acquisition Effective Time; provided, as applicable, provisions in its certificate of incorporation, bylaws and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of D&O Indemnitees that Parent may substitute therefor policies of substantially equivalent coverage and amounts, including extension or tail coverage policies, containing terms substantially as are no less favorable to those Persons than the provisions of such former directors certificates of incorporation, bylaws and other organizational documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) For a period of six years from the Reorganization Effective Time or the Acquisition Effective Time, as applicable, Pubco shall and shall cause its Subsidiaries to maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the Acquiror’s or the Company’s or any of its Subsidiaries’ directors’ and officers’ liability insurance policies on terms not less favorable than the terms of such current insurance coverage; provided, further, provided that if the existing D&O Insurance expires, any claim is terminated asserted or canceled during made within such six-year period, Parent or the Surviving Corporation will use all reasonable efforts to obtain substantially similar D&O Insurance coverage; provided, further, however, that in no event shall Parent be any insurance required to pay aggregate premiums for insurance be maintained under this Section 6.6(b) 6.01 shall be continued in excess respect of 150% such claim until the final disposition thereof. Without limiting the foregoing, the Company or Acquiror, as applicable, may (in its reasonable discretion), in lieu of continuing any policy that exists as of the average Reorganization Effective Time or the Acquisition Effective Time, as applicable, purchase, prior to the Closing, a “tail” policy, (a “D&O Tail Policy”) providing directors and officers liability insurance coverage for a period of six (6) years after the Reorganization Effective Time or the Acquisition Effective Time, as applicable, for the benefit of the aggregate premiums paid by the Company in 1995, 1996 and 1997 on an annualized basis for such purpose D&O Indemnitees at a price not to exceed 200% (the "Average Premium"), which true and correct amounts are set forth in Section 6.6(btwo hundred percent) of the amount per annum the Company Disclosure Schedule; and providedor Acquiror, furtheras applicable, that if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 6.6(b) paid for such aggregate premiuminsurance in the last 12 month period prior to the date of this Agreement. If purchased, Gambrinus, Parent or the Surviving Corporation Pubco shall obtain as much insurance as can be obtained for an annual premium not use its best efforts to maintain such D&O Tail Policy(s) in excess of 150% of the Average Premiumfull force.
(c) This Notwithstanding anything contained in this Agreement to the contrary, this Section 6.6 will 6.01 shall survive the consummation of the Merger at the Effective TimeMergers indefinitely and shall be binding, is intended to be for the benefit ofjointly and severally, and enforceable by, the Company, Parenton Pubco, the Surviving Reorganization Corporation, the Surviving Acquisition Corporation and each Indemnified Party and such Indemnified Party's heirs and representatives, and shall be binding on all successors and assigns of Parent the Surviving Reorganization Corporation and the Surviving Acquisition Corporation. In the event that the Surviving Reorganization Corporation or the Surviving Acquisition Corporation or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Reorganization Corporation or the Surviving Acquisition Corporation, as the case may be, shall succeed to the obligations set forth in this Section 6.01.
(d) The D&O Indemnitees are express third-party beneficiaries of this Section 6.01.
Appears in 1 contract
Samples: Merger Agreement (Battery Future Acquisition Corp.)
Indemnification and Directors’ and Officers’ Insurance. (a) From and after the consummation of the OfferEffective Time, Gambrinus and Parent willAcquiror shall, and will shall cause the Surviving Corporation (or any successor to the Surviving Corporation) Entities to, fulfill indemnify and honor in all respects the obligations hold harmless each present and former director, manager and officer of the Company pursuant to (i) Blade, each indemnification agreement in effect at such time between the Company Acquiror Party and each person who is of their respective Subsidiaries (each such Person a “D&O Indemnified Party”) against any costs or was a director expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or officer liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of the Company or pertaining to matters existing or occurring at or any time prior to the Effective Time Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that Blade, such Acquiror Party or its Subsidiaries would have been permitted under applicable Law and (ii) any indemnification provisions under the Company's Restated Articles of Incorporation or Bylaws as each is their respective Organizational Documents in effect on the date of this Agreement to indemnify such D&O Indemnified Party (including the persons to be indemnified pursuant advancing of expenses as incurred to the agreements or provisions referred to in clauses fullest extent permitted under applicable Law). Without limiting the foregoing, Acquiror shall cause the Surviving Entities and each of their respective Subsidiaries to, (i) and (ii) of this Section 6.6(a) shall be referred to as, collectively, the "Indemnified Parties"). The Articles of Incorporation and Bylaws of the Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's Articles of Incorporation and Bylaws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of any Indemnified Party.
(b) Gambrinus, Parent or the Surviving Corporation shall maintain or extend the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six years after from the Effective Time provisions in their respective Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors/managers that are no less favorable to those Persons than the provisions of such Organizational Documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) Acquiror shall or shall cause one or more of its Subsidiaries to purchase, at or prior to the Closing, and Acquiror shall or shall cause one or more of its Subsidiaries to maintain in effect for a period of six years from the Effective Time; provided, that Parent may substitute therefor one or more policies of substantially equivalent coverage directors’ and amounts, including extension or tail coverage policies, containing terms substantially as favorable to such former officers’ liability insurance covering those Persons who are currently directors or officers of Blade or Acquiror or otherwise currently covered by Blade’s, Acquiror’s or any of their respective Subsidiaries’ directors’ and officers; provided’ liability insurance policies (true, furthercorrect and complete copies of which with respect to Blade have been heretofore made available to Acquiror or its agents or representatives) on terms not less favorable than the terms of such current insurance coverage, that if the existing D&O Insurance expires, is terminated or canceled during such period, Parent or the Surviving Corporation will use all reasonable efforts to obtain substantially similar D&O Insurance coverage; provided, further, however, except that in no event shall Parent Acquiror or its Subsidiaries be required to (but at its election it may) pay an aggregate premiums premium for any such insurance policy in excess of 300% of the annual premium payable by Blade or the Acquiror, as applicable, for its current insurance policy covering the year ending December 31, 2021; provided, however, that (i) Acquiror may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Effective Time (the “D&O Tail”) and (ii) if any claim is asserted or made within such six-year period, any insurance required to be maintained under this Section 6.6(b) 7.01 shall be continued in excess respect of 150% of such claim until the average of the aggregate premiums paid by the Company in 1995, 1996 and 1997 on an annualized basis for such purpose (the "Average Premium"), which true and correct amounts are set forth in Section 6.6(b) of the Company Disclosure Schedule; and provided, further, that if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 6.6(b) for such aggregate premium, Gambrinus, Parent or the Surviving Corporation shall obtain as much insurance as can be obtained for an annual premium not in excess of 150% of the Average Premiumfinal disposition thereof.
(c) This Notwithstanding anything contained in this Agreement to the contrary, this Section 6.6 will 7.01 shall survive the consummation of the Merger at the Effective Timeindefinitely and shall be binding, is intended to be for the benefit ofjointly and severally, and enforceable by, the Company, Parenton Acquiror, the Surviving Corporation Entities and each Indemnified Party and such Indemnified Party's heirs and representatives, and shall be binding on all successors and assigns of Parent Acquiror and the Surviving CorporationEntities. If Acquiror or the Surviving Entities or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Acquiror or the Surviving Entities, as the case may be, shall succeed to the obligations set forth in this Section 7.01.
(d) On the Closing Date, Acquiror shall enter into customary indemnification agreements reasonably satisfactory to Blade and Acquiror with the post-Closing directors and officers of the Surviving Entities, which indemnification agreements shall continue to be effective following the Closing.
(e) The Parties acknowledge and agree that the D&O Indemnified Parties shall be intended third party beneficiaries of this Section 7.01.
Appears in 1 contract
