Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period. (b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder. (c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08). (d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08. (e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 4 contracts
Samples: Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify indemnify, defend and hold harmless each individual current and former director, officer and employee of the Company and any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the Effective Time is, request or at any time prior to for the Effective Time was, a director or officer benefit of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole relating to or in part, (A) the fact that an Indemnitee is connection with any action or was a director or officer of omission relating to their position with the Company or such Subsidiary its Subsidiaries occurring or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, alleged to have occurred before or at any time prior to, the Effective Time (including any Action Claim relating in whole or in part to this Agreement or the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of limitation of liability, exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or advancement of expenses as provided in (A) the Company Charter Documents and the respective organizational documents of each of the Company’s Subsidiaries as currently in effect and (B) any indemnification agreements with an Indemnitee (but only to the extent such indemnification agreement was made available to Parent prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on date hereof or entered into after the date of this Agreement or hereof in any agreement compliance with Section 5.1(a)), which shall in existence as of each case survive the date of this Agreement providing for indemnification between Transactions and continue in full force and effect to the Company and any Indemniteeextent permitted by applicable Law. Without limiting the foregoing, Parent, from and after at the Effective Time, the Surviving Corporation shall, and Parent shall, and shall causecause the Surviving Corporation to, to cause the fullest extent permitted under applicable Law, the memorandum articles of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain include provisions no less favorable to the Indemnitees with respect to for limitation of liabilities of directors and officers, indemnification, advancement of expenses and indemnification exculpation of the Indemnitees no less favorable to the Indemnitees than are as set forth as of in the Company Charter Documents in effect on the date of this Agreement in the Company Organizational DocumentsAgreement, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, Indemnitees except as amendments may be required by applicable Law during such periodLaw.
(b) For the six-year period commencing immediately From and after the Effective Time, Parent shall, and shall cause the Surviving Company shall maintain Corporation to, pay and advance to an Indemnitee any expenses (including fees and expenses of legal counsel) in effect directors’ and officers’ liability insurance from an insurance carrier connection with the same or better financial strength of the Company’s current carrier with respect any Claim relating to directors’ and officers’ liability insurance covering any acts or omissions occurring at covered under this Section 5.8 or prior the enforcement of an Indemnitee’s rights under this Section 5.8 as and when incurred to the Effective Time with respect fullest extent permitted under applicable Law, provided that the Indemnitee to Indemnitees on terms and scope with respect whom expenses are advanced provides an undertaking to repay such coverage, and in amount, no less favorable expenses if it is ultimately determined by a court of competent jurisdiction that such Indemnitee is not entitled to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium indemnification for such insurance shall exceed 300% of matter (but only to the current annual premium (extent such 300% thresholdrepayment is required by applicable Law, the “Maximum Premium”)Company Charter Documents, which Maximum Premium is set forth in Section 6.08(b) the applicable organizational documents of any Subsidiary of the Company Disclosure Letter, then Parent shall provide or cause to be provided applicable indemnification agreements).
(c) For a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess period of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) yearsyears from the Effective Time, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as Parent shall cause to be maintained in effect coverage no less favorable than the current coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the date hereof maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time either through the Company’s existing insurance provider or occurring prior to another provider reasonably selected by Parent; provided, however, that, after the Effective Time, including none of Parent, US Parent or the Transactions. If Surviving Corporation shall be required to pay annual premiums in excess of 300% of the annual premium currently paid by the Company in respect of the coverages required to be obtained pursuant hereto, but in such prepaid case shall purchase as much coverage as reasonably practicable for such amount; provided, further, that in lieu of the foregoing insurance coverage, the Company may purchase “tail” policy has been obtained insurance coverage, at a cost no greater than the aggregate amount which Parent, US Parent or the Surviving Corporation would be required to spend during the six–year period provided for in this Section 5.8(c), that provides coverage no less favorable than the coverage described above to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company, it shall be deemed Company and its Subsidiaries as of the date hereof with respect to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and matters arising on or before the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderEffective Time.
(cd) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives from and after the Effective Time, and (ii) in addition to, and not in substitution forfor or limitation of, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent, US Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(de) In the event that Parent, US Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent, US Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 4 contracts
Samples: Merger Agreement, Merger Agreement (Avista Corp), Merger Agreement
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Company and the Surviving Company Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director director, officer, or officer employee of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in (x) the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as currently in effect and (y) the indemnification agreements listed on the date of this Agreement or in any agreement in existence as Section 6.8(a) of the date of this Agreement providing for indemnification between Company Disclosure Letter, which shall survive the Company Transactions and any Indemniteecontinue in full force and effect in accordance with their respective terms. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to cause the fullest extent permitted under applicable Law, the memorandum articles of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amendednot, repealed, or otherwise modified for a period of six (6) years from and after the Effective Time Time, be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Effective Time, Parent shall, and shall cause the Company and the Surviving Corporation to, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 6.8 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.8) as amendments may be required by incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined under applicable Law during that such periodIndemnitee is not entitled to be indemnified.
(b) In the event of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 6.8 (each, a “Claim”), (i) the Surviving Corporation shall cooperate with the Indemnitee in the defense of any such Claim and (ii) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any Claim pending or threatened in writing to which an Indemnitee is a party (and in respect of which indemnification could be sought by such Indemnitee hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Legal Action or the Indemnified Party otherwise consents.
(c) For the six-year (6) period commencing immediately after the Effective Time, the Surviving Company Parent shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, no less favorable substantially similar to such individuals than those of such policies policy in effect on the date hereof (or Parent may substitute therefor policies, issued by reputable insurers, of this Agreementat least the same coverage with respect to matters occurring prior to the Effective Time); provided, however, that, if the aggregate annual premium premiums for such insurance shall exceed 300% of the current aggregate annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letterpremium, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of 300% of the Maximum Premiumcurrent aggregate annual premium; provided that any such replacement or substitution of insurance policies shall not result in gaps in coverage. The Company may may, and, if requested by Parent, shall purchase, prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) yearsTime, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent similar benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters existing arising on or occurring before the Effective Time, covering without limitation the Transactions; provided that the Company shall not pay in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of such “tail” policy. If such “tail” prepaid policy has been obtained by the Company prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it Parent shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and no party shall have any further obligation to honor all of its obligations thereunderpurchase or pay for insurance hereunder.
(cd) The provisions of this Section 6.08 6.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under applicable Law, the Company Organizational Charter Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 6.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 6.8 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 6.8 applies shall be third party beneficiaries of this Section 6.086.8).
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.086.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Hospitality Distribution Inc), Merger Agreement (Cec Entertainment Inc)
Indemnification and Insurance. (a) From In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any of the present or former officers or directors (the "Managers") of the Company is, or is threatened to be, made a party by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and from and after the Effective Time each of the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law (including by advancing expenses promptly as statements therefor are received), each such Manager against any losses, claims, damages, liabilities, costs, expenses (including attorneys' fees, whether such fees and disbursements were incurred in an action between the parties to this agreement or in an action brought by or involving a third party), judgments, fines and amounts paid in settlement in connection with any such claim, action, suit, proceeding or investigation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Managers may retain counsel satisfactory to them, and the Company, or the Surviving Corporation and Parent after the Effective Time, shall pay all fees and expenses of such counsel for the Managers promptly, as statements therefore are received, and (ii) the Company, or the Surviving Corporation and Parent after the Effective Time, will use their respective best efforts to assist in the vigorous defense of any such matter; provided that neither the Company nor the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further that the Surviving Corporation and Parent shall have no obligation hereunder to any Manager 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 Manager in the manner contemplated hereby is prohibited by applicable law. Any Manager wishing to claim indemnification under this Section 5.07(a), upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Company shallCorporation and Parent, thereof (provided that the failure to give such notice shall not affect any obligations hereunder, unless the indemnifying party is actually and materially prejudiced thereby).
(b) Parent and Acquisition Sub agree that all rights to indemnification existing in favor of the Managers as provided in the Company's Articles of Incorporation or Bylaws as in effect as of the date hereof, and Parent shall cause in any agreement between the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time Manager with respect to matters occurring prior to the Effective Time was, shall survive the Merger and shall continue in full force and effect for a director or officer period of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect not less than six years. Parent shall cause to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as maintained in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and not less than six years after the Effective Time, shall cause, to policies of directors' and officers' liability insurance (of at least the fullest extent permitted under applicable Law, the memorandum of association same coverage and bye-laws of the Surviving Company to contain provisions amounts containing terms and conditions which are no less favorable to advantageous than the Indemnitees terms and conditions contained in similar policies maintained by Parent for Parent's directors and officers) with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, claims arising from facts or events which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from occurred before the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderextent available.
(c) The provisions of this Section 6.08 5.07 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, indemnified party and his or her Representatives heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)representatives.
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (Realco Inc /Nm/), Merger Agreement (Realco Inc /Nm/), Merger Agreement (Realco Inc /Nm/)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, to the fullest extent permitted by applicable law, indemnify, defend and Parent shall cause the Surviving Company hold harmless, and provide advancement of expenses to, (i) indemnify and hold harmless each individual person who at the Effective Time isis now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time wasan officer, a director or officer employee of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesCompany Indemnified Parties”) with respect to against all losses, claims, liabilities, losses, damages, judgmentscosts, finesexpenses, penalties, costs (including liabilities or judgments or amounts that are paid in settlement of or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civilclaim, criminalaction, administrativesuit, proceeding or investigative), whenever asserted, investigation based on or arising out of, in whole or in part, (A) part on or arising in whole or in part out of the fact that an Indemnitee such person is or was a director director, officer or officer employee of the Company or such any Subsidiary of the Company, and pertaining to any matter existing or (B) occurring, or any acts or omissions by an Indemnitee in occurring, at or prior to the Indemnitee’s capacity as a directorEffective Time, officer, employee, whether asserted or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), atclaimed prior to, or at any time prior toor after, the Effective Time (including any Action relating matters, acts or omissions occurring in whole or in part to connection with the Transactions or relating to the enforcement approval of this provision Agreement and the consummation of the transactions contemplated hereby or any other indemnification or advancement right of any IndemniteeCompany Indemnified Party), in each case solely to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations organizational documents of the Company and its Subsidiaries (as in effect on the date of this Agreement) or any indemnification agreement between such Subsidiaries persons and the Company to the Indemnitees extent disclosed or made available to Parent prior to the date of this Agreement.
(b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided that Parent may substitute therefor policies (including tail policies) with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims arising from facts or events that occurred at or before the Effective Time; provided, that if the cost of indemnification such insurance exceeds 300% of the amount set forth on Section 6.13 of the Company Disclosure Letter, and Parent elects not to spend more than such amount for such purpose, then Parent may purchase as much coverage as is reasonably available for such amount.
(c) All rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring under the Company’s charter, bylaws or indemnification Contracts or undertakings existing in favor of those Persons who are, or were, directors and officers of the Company at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in shall survive the Mergers and shall be assumed by Parent following the Effective Time without any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemniteefurther action. Without limiting the foregoing, Parentthe charter and bylaws of Company (as the surviving entity in the First Merger) and the charter and bylaws of Merger Sub 2 (as the surviving entity in the Second Merger), from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees Company Indemnified Parties with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documentscharter and bylaws of the Company, which provisions shall not be amended, repealed, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Company Indemnified Parties. In addition, from the Effective Time, Parent shall, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including attorneys’ fees) of any Company Indemnified Party under this Section 6.13 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.13) as incurred to the fullest extent permitted under applicable Law for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee Person to whom this Section 6.08 applies, unless (x) expenses are advanced provides an undertaking to repay such termination or modification advances if it is required ultimately determined by applicable Law or (y) the affected Indemnitee shall have consented in writing final adjudication that such Person is not entitled to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)indemnification.
(d) In the event that Parent, the Surviving Company, If Parent or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company or entity of such consolidationconsolidation or merger, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or Parent, as the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.08.
(e) 6.13. Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of or their respective directors, officers, or other directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.08 6.13 is not prior to to, or in substitution for substation for, any such claims under any such policies.
(e) The provisions of this Section 6.13 (i) shall survive the consummation of the Mergers and continue in full force and effect, (ii) are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party, his or her heirs and representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Noble Corp PLC), Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Diamond Offshore Drilling, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time until the sixth anniversary of the Effective Time, Parent and the Surviving Company shallEntity, jointly and Parent severally, shall cause the Surviving Company toindemnify, (i) indemnify defend and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Partnership or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company Partnership (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including reasonable attorneys’ and other professionals’ fees and expenses of legal counselexpenses) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company Partnership or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company Partnership or such Subsidiary or taken at the request of the Company Partnership or such Subsidiary (including in connection with serving at the request of the Company Partnership or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), in each case, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty entitled to indemnification under the Partnership Charter, the Partnership Agreement, by Contract (if applicable), in relation to the Companyeach case, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or effect immediately prior to the Effective Time (Time, and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemniteeapplicable Law. Without limiting the foregoing, Parent, from and after the Effective Time until the sixth anniversary of the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum of association and bye-laws governing documents of the Surviving Company Entity to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational DocumentsPartnership Charter and Partnership Agreement, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after At or prior to the Effective Time, the Surviving Company Partnership shall maintain cause to be put in effect place, and Parent shall fully prepay immediately prior to the Effective Time, directors’ and officers’ liability “tail” insurance policies with a claims period of at least 6 years after the Effective Time (the “Tail Period”) from an insurance carrier carrier(s) with the same or better financial strength of credit rating as the CompanyPartnership’s current carrier insurance carrier(s) with respect to directors’ and officers’ liability insurance covering in an amount and scope at least as favorable as the Partnership’s existing policies as of the date hereof with respect to matters, acts or omissions existing or occurring at or prior to to, but not after, the Effective Time with respect to Indemnitees on terms and scope with respect to such coverageTime, and expressly covering the Surviving Entity as a successor in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreementinterest (“D&O Tail Insurance”); provided, however, that, if the annual premium for such insurance that in no event shall exceed 300% Parent be required to pay in excess of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is amount set forth in Section 6.08(b5.09(b) of the Company Parents Disclosure LetterSchedule (the “Maximum Amount”); and provided, then Parent further, that if the D&O Tail Insurance is not available or if the cost of the D&O Tail Insurance exceeds the Maximum Amount, the Partnership shall provide or cause to be provided obtain a policy for the applicable individuals policy(ies) with the best greatest coverage as shall then be available at an annual premium for a cost not in excess of exceeding the Maximum PremiumAmount. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) Parent and the Surviving Company Entity shall use its reasonable best efforts to cause such policy to be maintained maintain the D&O Tail Insurance in full force and effect, for its full term, effect and continue to honor all of its their respective obligations thereunderthereunder for the Tail Period.
(c) The provisions of this Section 6.08 5.09 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational DocumentsPartnership Charter, Partnership Agreement, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Entity under this Section 6.08 5.09 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.09 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.09 applies shall be third third-party beneficiaries of this Section 6.085.09).
(d) In the event that Parent, the Surviving Company, Entity or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company Surviving Entity or entity of such consolidation, amalgamation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Entity shall assume all of the obligations thereof set forth in this Section 6.085.09.
(e) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company Partnership or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.09 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (New Fortress Energy Inc.), Merger Agreement (Golar LNG Partners LP), Merger Agreement (Golar LNG LTD)
Indemnification and Insurance. (a) From and after the Effective Time, through the sixth anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, (i) indemnify and hold harmless harmless, each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (in all of such individual’s capacities as such officer or director) (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to and against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or on, arising out of, or related to, in whole or in part, (A) the fact that an Indemnitee is such Indemnitee’s service and for such Indemnitee’s acts or was omissions, as a director or officer of the Company or such Subsidiary or (B) acts or omissions service performed by an such Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan))Subsidiary, in each case under clause (A) or (B)case, at, or at any time prior to, the Effective Time (including including, for the avoidance of doubt, (i) any Action claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions or relating and (ii) actions to the enforcement of enforce this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (iii) without limiting clauses (i) and (ii) ), assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such its Subsidiaries as currently in effect on the date of this Agreement or in any agreement in existence as effect, all of the date of this Agreement providing for indemnification between foregoing, to the Company and any Indemniteefullest extent permitted by applicable law. Without limiting the foregoing, Parent, from and after the Effective Time until six years from the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum certificate of association incorporation and byeby-laws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Effective Time until six years from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.9 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.9) as amendments incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances if it shall be determined that such person is not entitled to be indemnified pursuant to this Section 5.9(a). The rights of the Indemnitees under this Section 5.9(a) shall be in addition to any rights such Indemnitees may be required by applicable Law during such periodhave under the Company Charter Documents and the organizational documents of its Subsidiaries as currently in effect.
(b) The Surviving Corporation shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.9 (each, a “Claim”). The Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies policy in effect on the date hereof (or Parent may substitute therefor policies, issued by reputable insurers, of this Agreementat least the same coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy); provided, however, that, if the aggregate annual premium premiums for such insurance shall exceed 300% of the current aggregate annual premium (such 300% threshold%, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchaseTime, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) yearswith Parent’s prior written consent, purchase a six-year prepaid “tailtail policy” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactionstransactions contemplated hereby. If such prepaid “tailtail policy” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.9(c) and the Surviving Company Corporation shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 5.9 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under by contract or otherwise. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the Charter Documents or any indemnification agreement between such Indemnitee and the Company Organizational Documentsor any of its Subsidiaries shall survive the Merger and shall not be amended, by Contract, repealed or otherwiseotherwise modified in any manner that would adversely affect the rights thereunder of any such Indemnitee. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.9 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.9 applies shall be third party beneficiaries of this Section 6.085.9).
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.9.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.9 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc), Merger Agreement (Cke Restaurants Inc)
Indemnification and Insurance. 21.01 Protox shall defend, indemnify and hold Kissei, its Affiliate and Authorized Sublicensees and all the officers, directors, trustees, students, agents and employees, thereof (athe “Kissei Indemnified Parties”) From harmless against all liabilities, damages, losses, costs, or expenses (including but not limited to all associated legal fees and after expenses actually incurred) resulting from any Third Party claim made or suit brought against the Effective TimeKissei Indemnified Parties, to the Surviving Company shallextent the same is arising from the exercise of Kissei’s rights and obligations under this Agreement, and Parent shall cause the Surviving Company toincluding without limitation any damages, losses, consequential or otherwise, arising in any manner from:
(i) indemnify breach of its representations and hold harmless each individual who at warranties stipulated in paragraph 10.02 and other material breach of any term of this Agreement on the Effective Time ispart of Protox or its Affiliates or licensees or any of its or their officers, directors, or at employees (including without limitation any time express representation or warranty made herein),
(ii) the negligence, recklessness, or willful misconduct or fraud on the part of Protox or its Affiliates or licensees or any of its or their officers, directors, or employees in the performance of this Agreement,
(iii) any product liability claim related to the Modified Protein and the Bulk Product and attributable to the conduct of Protox, its Affiliates or licensees, which is made prior to the Effective Time was, a director Date or officer of during the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date term of this Agreement or in and outside the Territory,
(iv) any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, product liability claim related to the fullest extent permitted under applicable LawProduct developed, distributed or sold by Kissei during the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date term of this Agreement in the Company Organizational DocumentsTerritory, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years is resulting from the Effective Time in a manner that would adversely affect Modified Protein and the rights thereunder of the IndemniteesBulk Product provided by Protox hereunder, except as amendments may be required by applicable Law during such period.or
(bv) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ any clinical studies and officers’ liability insurance from an insurance carrier with the same marketing activities conducted by or better financial strength on behalf of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts Protox or omissions occurring at its Affiliates or its licensees prior to the Effective Time with respect Date and during the term of this Agreement in or outside the Territory. However, Protox shall not be required to Indemnitees on terms indemnify the Kissei Indemnified Parties to the extent that any such claims arose out of or resulting from the breach, negligence, recklessness or willful misconduct or fraud of the Kissei Indemnified Parties.
21.02 Kissei shall defend, indemnify and scope with respect to such coveragehold Protox and its Affiliates, and in amounttheir respective licensors and all the officers, no less favorable directors, trustees, students, agents and employees thereof (the “Protox Indemnified Parties”) harmless against all liabilities, damages, losses, costs, or expenses (including but not limited to such individuals than those all associated legal fees and expenses actually incurred) resulting from any Third Party claim made or suit brought against the Protox Indemnified Parties, to the extent the same is arising from the exercise of such policies in effect on the date of Protox’s rights and obligations under this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Companywithout limitation any damages, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained losses, consequential or otherwise, arising in full force and effect, for its full term, and to honor all of its obligations thereunder.any manner from:
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, breach of its representations and shall be enforceable by, each Indemnitee, his or her heirs, warranties stipulated in paragraph 10.03 and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights material breach of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries term of this Section 6.08).
(d) In Agreement on the event that Parent, the Surviving Company, part of Kissei or any of their respective successors its Affiliates or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company Authorized Sublicensees or any of its Subsidiaries for or their officers, directors, or employees (including without limitation any express representation or warranty made herein),
(ii) the negligence, recklessness, or willful misconduct or fraud on the part of Kissei or its Affiliates or its Authorized Sublicensees or any of its or their respective officers, directors, officersor employees in the performance of this Agreement,
(iii) any product liability claim related to the Product developed, or other employeesdistributed and sold by Kissei during the term of this Agreement in the Territory, it being understood and agreed that the indemnification provided for in this Section 6.08 which claim is not prior resulting from the Modified Protein and the Bulk Product provided by Protox hereunder, or
(iv) any clinical studies and marketing activities conducted by or on behalf of Kissei or its Affiliates or its Authorized Sublicensees during the term of this Agreement in the Territory. However, Kissei shall not be required to or in substitution for indemnify the Protox Indemnified Parties to the extent that any such claims arose out of or resulting from the breach, negligence, recklessness or willful misconduct or fraud of the Protox Indemnified Parties.
21.03 Both parties will procure and maintain adequate insurance in order to be able to cover claims under such policiesthis Agreement in the Territory, including, without limitation, product liability insurance in the minimum amount of five million dollars ($5,000,000) per claim. Upon request, each Party shall provide proof of adequate coverage to the other party.
Appears in 3 contracts
Samples: Exclusive License Agreement (Sophiris Bio Inc.), Exclusive License Agreement (Sophiris Bio Inc.), Exclusive License Agreement (Sophiris Bio Inc.)
Indemnification and Insurance. (a) From Parent and Sub agree that all rights to indemnification existing in favor of the present or former directors, officers and employees of the Company or any of its Subsidiaries (the "INDEMNIFIED PARTIES") as provided in indemnification agreements with the Company, the Company's Certificate of Incorporation or Bylaws, or the articles of organization, bylaws or similar documents of any of the Company's Subsidiaries as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, including, without limitation, matters based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, shall survive the Merger and shall continue in full force and effect for a period of not less than the statutes of limitations applicable to such matters, and Parent agrees to cause the Surviving Corporation to comply fully with its obligations hereunder and thereunder.
(b) To the extent paragraph (a) shall not serve to indemnify and hold harmless an Indemnified Party, for a period of four years from and after the Effective Time, the Surviving Company shall, Corporation and Parent shall cause the Surviving Company toindemnify, (i) indemnify defend and hold harmless each individual who at the Effective Time isIndemnified Parties against all losses, claims, damages, costs, expenses (including reasonable attorneys' fees and expenses), liabilities or at judgments of or in connection with any time threatened or actual claim, action, suit, proceeding or investigation (an "ACTION") arising out of or pertaining to such individuals' services, prior to the Effective Time wasTime, a director as directors, officers or officer employees of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns or as trustees or fiduciaries of any equity interests plan for the benefit of employees of the Company or as (at the request of the Company Company) directors, officers or employees of another corporation or other enterprise (eachincluding, together with such Person’s heirswithout limitation, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, matters based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employeepart on, or agent of the Company arising in whole or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trusteepart out of, or fiduciary of another Person (including any employee benefit plan)pertaining to this Agreement or the transactions contemplated hereby), in each case under clause to the full extent permitted by applicable law.
(Ac) or (B), at, or at any time prior to, The Surviving Corporation will cause to be maintained in effect for a period of four years after the Effective Time (including any Action relating in whole or in part or, if the statute of limitations with respect to such claims is extended, for an additional period, not to exceed two years, equal to the Transactions or relating to the enforcement length of this provision or any other indemnification or advancement right of any Indemniteesuch extension), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement but only in respect thereof), policies of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors directors' and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ ' liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms persons currently covered by the Company's existing directors' and scope with respect officers' liability insurance policies and providing substantially similar coverage to such coverageexisting policies; PROVIDED, HOWEVER, that the Surviving Corporation will not be required in order to maintain such directors' and officers' liability insurance policies to pay an annual premium in amount, no less favorable to such individuals than those excess of such policies in effect on $265,000 (the date of this Agreement"CAP"); provided, however, and PROVIDED FURTHER that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% thresholdequivalent coverage cannot be obtained, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to can be provided a policy for the applicable individuals with the best coverage as shall then be available at obtained only by paying an annual premium not in excess of the Maximum Premium. The Company may prior Cap, the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Cap.
(d) In the event that Parentany Action is brought against any Indemnified Parties for which indemnification may be sought in accordance with this Section 6.05, (i) such Indemnified Parties shall notify the Company (or, after the Effective Time, the Surviving Company, or any of their respective successors or assigns (iCorporation and Parent) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity in writing promptly after such Indemnified Party receives notice of such consolidationAction and shall deliver to the Company (or, amalgamationafter the Effective Time, or merger or the Surviving Corporation and Parent) the undertaking contemplated by Section 145(e) of the DGCL, (ii) transfers the Company (or, after the Effective Time, the Surviving Corporation or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision Parent) shall be made so that entitled to assume the successors and assigns of Parent defense thereof and, after notice from the Company (or the Surviving Corporation or Parent, as applicable) to the Indemnified Parties that it so chooses, the Company (or the Surviving Corporation and Parent, as applicable) shall not be liable to the Indemnified Parties for any legal fees or expenses subsequently incurred by any Indemnified Party in connection with the defense thereof (PROVIDED, HOWEVER, that if (x) the Company (or the Surviving Corporation and Parent, as applicable) does not elect to assume all the defense thereof, (y) the Company (or the Surviving Corporation and Parent, as applicable) otherwise authorizes the Indemnified Party to retain counsel for the defense thereof or (z) the assumption of the obligations defense thereof set forth by the Company (or the Surviving Corporation or Parent, as applicable) would present counsel selected by the Company (or the Surviving Corporation or Parent, as applicable) with a conflict of interest or if such counsel's representation of the Indemnified Parties would otherwise be inappropriate under the applicable standards of professional conduct, then the Company (or the Surviving Corporation and Parent, as applicable) will pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, and reasonably acceptable to Parent), and (iii) the Company (or the Surviving Corporation and Parent, as applicable) will cooperate in the defense of any such matter; PROVIDED, HOWEVER, that none of the Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and PROVIDED FURTHER that the Company (or the Surviving Corporation and Parent, as applicable) shall not be obligated pursuant to this Section 6.086.05 to pay the fees and expenses of more than one counsel for all Indemnified Parties in any single Action, except to the extent that, in the reasonable opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action.
(e) Nothing in this Agreement This Section 6.05 shall survive the consummation of the Merger and is intended toto benefit, and shall be construed toenforceable by any person or entity entitled to be indemnified hereunder (whether or not parties to this Agreement). The Company (or the Surviving Corporation and Parent, or as applicable) shall releasepay the reasonable expenses, waiveincluding reasonable attorneys' fees, or impair that may be incurred by any Indemnified Parties in enforcing rights to directors’ and officers’ insurance claims which such Indemnified Parties are entitled under any policy that is or has been in existence with respect to the Company or any provisions of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies6.05.
Appears in 3 contracts
Samples: Merger Agreement (Dep Corp), Merger Agreement (Dep Corp), Merger Agreement (Henkel Acquisition Corp Ii)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company and Parent shall indemnify and hold harmless all past and present directors, officers and employees of the Company or any of its Subsidiaries and each Person who served as a director, officer, managing member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request or for the benefit of the Company or any of its Subsidiaries (collectively, together with such Persons’ heirs, executors and administrators, the “Covered Persons”) to the fullest extent permitted by Law as provided in the Company Organizational Documents or similar governing documents of the Company’s Subsidiaries, in each case as in effect on the date of this Agreement, or pursuant to any other contracts in effect on the date of this Agreement and disclosed in the Company Disclosure Schedule (the “Indemnification Contracts”) against any costs and expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Covered Person to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened Proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of acts or omissions occurring at or prior to the Effective Time (including acts or omissions in connection with such Persons serving as an officer, director or other fiduciary in any entity at the request or for the benefit of the Company). Without limiting the foregoing, from and after the Effective Time, Parent and the Surviving Company shall indemnify and hold harmless the Covered Persons to the fullest extent permitted by Law as provided in the Company Organizational documents or similar governing documents of the Company’s Subsidiaries, in each case as in effect on the date of this Agreement, or pursuant to any Indemnification Contracts for acts or omissions occurring in connection with the process resulting in and the adoption and approval of this Agreement and the consummation of the transactions contemplated hereby. From and after the Effective Time, Parent, the Company and the Surviving Company shall advance expenses (including reasonable legal fees and expenses) incurred in the defense of any Proceeding or investigation with respect to the matters subject to indemnification pursuant to this Section 5.10(a) in accordance with the procedures (if any) set forth in the Company Organizational Documents, the certificate or articles of incorporation and code of regulations or bylaws, or other organizational or governance documents, of any Subsidiary of the Company, and Indemnification Contracts. In the event of any such Proceeding or investigation, Parent and the Surviving Company shall cooperate with the Covered Person in the defense of any such Proceeding or investigation.
(b) For not less than six years from and after the Effective Time, to the extent permitted by applicable Law, the limited liability company agreement of the Surviving Company shall contain provisions no less favorable with respect to exculpation, indemnification of and advancement of expenses to Covered Persons for periods at or prior to the Effective Time than are currently set forth in the Company Organizational Documents. Notwithstanding anything herein to the contrary, if any Proceeding or investigation (whether arising before, at or after the Effective Time) is made against such persons with respect to matters subject to indemnification hereunder on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.10(b) shall continue in effect until the final disposition of such Proceeding or investigation. Following the Effective Time, the indemnification agreements, if any, in existence on the date of this Agreement with any of the directors, officers or employees of the Company or any its Subsidiaries shall be assumed by the Surviving Company, without any further action, and shall continue in full force and effect in accordance with their terms.
(c) For not less than six years from and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at maintain for the Effective Time is, or at any time prior to the Effective Time was, a director or officer benefit of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors directors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations officers of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence its Subsidiaries, as of the date of this Agreement providing and as of the Effective Time, an insurance and indemnification policy that provides coverage for indemnification between events occurring prior to the Effective Time (the “D&O Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the existing policies of the Company and any Indemniteeits Subsidiaries or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, that the Surviving Company shall not be required to pay an annual premium for the D&O Insurance in excess of 300% of the last annual premium paid prior to the date of this Agreement, but in such case shall purchase as much coverage as is available for such amount. Without limiting The provisions of the foregoingimmediately preceding sentence shall be deemed to have been satisfied if prepaid policies have been obtained prior to the Effective Time (which the Company shall be permitted to purchase prior to the Effective Time at a price of no more than 300% of the last annual premium for each year of coverage), Parent, which policies provide such directors and officers with coverage for an aggregate period of at least six years from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees Time with respect to limitation of liabilities of directors and officersclaims arising from facts or events that occurred on or before the Effective Time, advancement of expenses and indemnification than are set forth as including in respect of the date of transactions contemplated by this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during Agreement. If such period.
(b) For the six-year period commencing immediately after prepaid policies have been obtained prior to the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverageshall, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause to, maintain such policy to be maintained policies in full force and effect, for its full term, and continue to honor all of its the obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, Parent or the Surviving Company, or any of their respective successors or assigns Company (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, then proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, shall assume the obligations set forth in this Section 5.10.
(e) The obligations under this Section 5.10 shall not be terminated or modified in any manner that is adverse to the Covered Persons (and their respective successors and assigns assigns), it being expressly agreed that the Covered Persons (including their respective successors and assigns) shall be third party beneficiaries of this Section 5.10. In the event of any breach by the Surviving Company or Parent or of this Section 5.10, the Surviving Company shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by Covered Persons in enforcing the indemnity and other obligations provided in this Section 5.10 as such fees are incurred, upon the written request of such Covered Person.
(f) From and after the Effective Time, the Surviving Company shall assume all remaining obligations of the obligations thereof Company set forth in this Section 6.085.08 of the Agreement and Plan of Merger by and among the Company, Comet Merger Co., SGS Holdings, Inc. and the Sellers listed on Schedule I thereto, dated January 6, 2014.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Indemnification and Insurance. (a) From Parent and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior Merger Sub agree that all rights to the Effective Time was, a director or officer indemnification existing in favor of the Companycurrent or former directors, a Subsidiary officers and employees of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesIndemnified Persons”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and Certificate of Incorporation or By-laws, or the Organizational Documents articles of such organization, bylaws or similar constituent documents of any of the Company’s Subsidiaries or in any indemnification agreement or arrangement, as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing with respect to matters occurring prior to the Effective Time shall survive the Merger and shall continue in full force and effect for indemnification between a period of not less than six years after the Company Effective Time unless otherwise required by Law. In addition to and any Indemnitee. Without limiting not in limitation of the foregoing, Parent, from and after the Effective Time, shall causeSurviving Corporation shall, to the fullest extent permitted under applicable Law, the memorandum indemnify and hold harmless (and advance funds in respect of association and bye-laws each of the Surviving Company foregoing) each Indemnified Person against any costs or expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to contain provisions no less favorable each Indemnified Person to the Indemnitees fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (with the prior written consent of Parent) in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (an “Action”), arising out of, relating to or in connection with any action or omission occurring or alleged to have occurred whether before the Effective Time (including acts or omissions in connection with such Persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company), except for in any case, any claim, judgments, fines, penalties and amounts to be paid which relate to any act or omission which constitutes a material violation of Law and except for other exceptions to indemnification that are required by Law. In the event of any such Action, the Surviving Corporation shall reasonably cooperate with the Indemnified Person in the defense of any such Action. The Surviving Corporation shall have the right to assume control of and the defense of, any Action, suit, proceeding, inquiry or investigation to which this Section 5.7(a) shall apply; provided, however, that the Surviving Corporation shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of applicable Indemnified Persons) for all Indemnified Persons in any jurisdiction with respect to limitation any single Action, suit, proceeding, inquiry or investigation, unless the use of liabilities one counsel for such Indemnified Persons would present such counsel with a conflict of directors interest that would make such joint representation inappropriate. The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Person in enforcing the indemnity and officers, other obligations provided in this Section 5.7(a). The advancement of any amounts to be paid in respect of legal and other fees and expenses and indemnification than are set forth as pursuant to this Section 5.7(a) shall be subject to an undertaking of the date of this Agreement in recipient, to the Company Organizational Documentsextent required by the Corporation Law, which provisions shall to repay such advances if it is ultimately determined that such person is not be amended, repealed, or otherwise modified for a period of six (6) years entitled to indemnification from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodSurviving Corporation.
(b) For the six-year period commencing immediately after The Company shall purchase on or prior to the Effective Time, and the Surviving Company Corporation shall maintain in effect with reputable and financially sound carriers, tail policies to the current directors’ and officers’ liability insurance and fiduciaries liability insurance policies maintained on the date of this Agreement by the Company and its Subsidiaries, which tail policies and fiduciaries liability policies (i) shall be effective for a period from the Effective Time through and including the date six years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) shall contain coverage that is at least as protective to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Parent) and shall in any event include nonmanagement directors Side A (DIC) coverage. The Surviving Corporation shall provide copies of such policies to the past, current and future directors and officers of the Company entitled to the benefit thereof as reasonably requested by such persons from time to time. Notwithstanding the foregoing, if the coverage described above cannot be obtained or can only be obtained by paying aggregate premiums in excess of 300% of the aggregate annual amount currently paid by the Company for such coverage, the Surviving Corporation shall only be required to provide as much coverage as can be obtained by paying aggregate premiums equal to 300% of the aggregate amount currently paid by the Company for such coverage. Guarantor may substitute an insurance carrier with alternative for the same or better financial strength of tail policies that affords, in the aggregate, no less favorable protection to such officers and directors; provided, that any such alternative is approved by the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or Board of Directors prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and (which approval may be withheld in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”its discretion), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions This Section 5.7 shall survive the consummation of this Section 6.08 are (i) the Merger and is intended to be for the benefit ofbenefit, and shall be enforceable by, by each Indemnitee, his or her heirs, Indemnified Person (notwithstanding that such Persons are not parties to this Agreement) and his or her Representatives their respective heirs and (ii) in addition to, and legal representatives. The indemnification provided for herein shall not in substitution for, be deemed exclusive of any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documentswhich an Indemnified Person is entitled, by Contractwhether pursuant to Law, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Person on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation.
(e) In the event that Parent, the Surviving CompanyCorporation, Parent or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Corporation or Parent, as the case may be, shall assume all of succeed to the obligations thereof set forth in this Section 6.085.7.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of or their respective directors, officers, or other directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.7 is not prior to or in substitution for any such claims under any such policies, provided, that for avoidance of doubt, neither Parent nor the Surviving Corporation shall be required to make any payments thereunder or in connection therewith.
Appears in 3 contracts
Samples: Merger Agreement (American Real Estate Partners L P), Merger Agreement (Lear Corp), Merger Agreement (Lear Corp)
Indemnification and Insurance. (a) From and after the Effective Time, solely to the extent that the Partnership or the Partnership GP or any applicable Subsidiary thereof would be permitted to indemnify an Indemnified Person immediately prior to the Effective Time, Parent and the Surviving Company shall, Entity jointly and Parent shall cause the Surviving Company to, severally agree to (i) indemnify and hold harmless each individual who at the Effective Time isagainst any reasonable costs or expenses (including reasonable attorneys’ fees and all other reasonable costs, expenses and obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or at preparing to investigate, defend, be a witness in or participate in, any time prior Proceeding, including any Proceeding relating to the Effective Time was, a director claim for indemnification or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such advancement brought by an Indemnified Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages), judgments, fines, penaltieslosses, costs (including claims, damages or liabilities, penalties and amounts paid in settlement or compromise), and expenses (including fees all interest, assessments and expenses other charges paid or payable in connection with or in respect of legal counselany thereof) in connection with any Action (whether civilactual or threatened Proceeding, criminaland, administrative, upon receipt by Parent of an undertaking by or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer behalf of the Company or Indemnified Person to repay such Subsidiary or (B) acts or omissions amount if it shall be determined in a final and non-appealable judgment entered by an Indemnitee in a court of competent jurisdiction that the Indemnitee’s capacity as a directorIndemnified Person is not entitled to be indemnified, officer, employee, or agent provide advancement of expenses with respect to each of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior foregoing to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), all Indemnified Persons to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the Organizational Documents of the Company Partnership and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or Partnership GP immediately prior to the Effective Time (Time, and rights for advancement of expenses) as provided in the Company Organizational Documents and ensure that the Organizational Documents of such Subsidiaries as in effect on the date Partnership and the Partnership GP or any of this Agreement their respective successors or in any agreement in existence as assigns, if applicable, shall, for a period of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after six years following the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officersindemnification, advancement of expenses and indemnification exculpation of present and former directors, officers and employees of the Partnership and the Partnership GP than are presently set forth as of the date of this Agreement in the Company such Organizational Documents, which provisions . Any right of an Indemnified Person pursuant to this Section 6.7(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and representatives against Parent and the Partnership GP and their respective successors and assigns.
(b) Parent shall maintain in effect for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect Parent’s current directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on Indemnified Persons (provided that Parent may substitute therefor policies with reputable carriers of at least the same coverage containing terms and scope with respect to such coverage, and in amount, conditions that are no less favorable to such individuals than those of such policies in effect on the date of this AgreementIndemnified Persons); provided, however, that, if the that in no event shall Parent be required to expend pursuant to this Section 6.7(b) more than an amount per year equal to 300% of current annual premium premiums paid by Parent for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum PremiumAmount”). In the event that, which but for the proviso to the immediately preceding sentence, Parent would be required to expend more than the Maximum Premium Amount, Parent shall obtain the maximum amount of such insurance as is set forth available for the Maximum Amount. If Parent in Section 6.08(b) its sole discretion elects, then, in lieu of the Company Disclosure Letterobligations of Parent under this Section 6.7(b), then Parent may (but shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchaseunder no obligation to), for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Transactions. If Effective Time that were committed or alleged to have been committed by such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained Indemnified Persons in full force and effect, for its full term, and to honor all of its obligations thereundertheir capacity as such.
(c) The rights of any Indemnified Person under this Section 6.7 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of the Partnership and the Partnership GP, any indemnification agreements, or the DLLCA and DRULPA. The provisions of this Section 6.08 6.7 shall survive the consummation of the transactions contemplated by this Agreement for a period of six (6) years and are (i) expressly intended to be benefit each of the Indemnified Persons and their respective heirs and representatives; provided, however, that in the event that any claim or claims for the benefit ofindemnification or advancement set forth in this Section 6.7 are asserted or made within such six (6)-year period, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other all rights to indemnification or contribution that and advancement in respect of any such individual may have under claim or claims shall continue until disposition of all such claims. If Parent and/or the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving CompanyPartnership GP, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidationPerson, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and their businesses or assets to any other Person, then, and in each such case, to the extent necessary, a proper provision shall be made so that the successors and assigns of Parent or and/or the Surviving Company Partnership GP shall assume all of the obligations thereof of Parent and the Partnership GP set forth in this Section 6.086.7.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (Oneok Inc /New/), Merger Agreement (Oneok Inc /New/), Merger Agreement
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify indemnify, defend and hold harmless each individual current and former director, officer and employee of the Company and any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the Effective Time is, request or at any time prior to for the Effective Time was, a director or officer benefit of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole relating to or in part, (A) the fact that an Indemnitee is connection with any action or was a director or officer of omission relating to their position with the Company or such Subsidiary its Subsidiaries occurring or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, alleged to have occurred before or at any time prior to, the Effective Time (including any Action Claim relating in whole or in part to this Agreement or the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of limitation of liability, exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or advancement of expenses as provided in (A) the Company Charter Documents and the respective organizational documents of each of the Company’s Subsidiaries as currently in effect and (B) any indemnification agreements with an Indemnitee (but only to the extent such indemnification agreement was made available to Parent prior to the Effective Time date hereof), which shall in each case survive the Transactions and continue in full force and effect to the extent permitted by applicable Law.
(and rights for advancement of expensesb) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from From and after the Effective Time, Parent shall, and shall causecause the Surviving Corporation to, pay and advance to an Indemnitee any expenses (including fees and expenses of legal counsel) in connection with any Claim relating to any acts or omissions covered under this Section 5.8 or the enforcement of an Indemnitee’s rights under this Section 5.8 as and when incurred to the fullest extent permitted under applicable Law, provided that the memorandum person to whom expenses are advanced provides an undertaking in accordance with applicable Law to repay such expenses if it is ultimately determined by a court of association and bye-laws competent jurisdiction that such Indemnitee is not entitled to indemnification for such matter (but only to the extent such repayment is required by applicable Law, the Company Charter Documents, applicable organizational documents of Subsidiaries of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and or applicable indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for agreements).
(c) For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be maintained in effect coverage not materially less favorable than the coverage provided a policy for by the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the date hereof maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time either through the Company’s existing insurance provider or occurring prior to another provider reasonably selected by Parent; provided, however, that, after the Effective Time, including Parent shall not be required to pay annual premiums in excess of 300% of the Transactions. If annual premium currently paid by the Company in respect of the coverages required to be obtained pursuant hereto, but in such prepaid case shall purchase as much coverage as reasonably practicable for such amount; provided, further, that in lieu of the foregoing insurance coverage, the Company may purchase “tail” policy has been obtained insurance coverage, at a cost no greater than the aggregate amount which Parent would be required to spend during the six–year period provided for in this Section 5.8(c), that provides coverage not materially less favorable than the coverage described above to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company, it shall be deemed Company and its Subsidiaries as of the date hereof with respect to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and matters arising on or before the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderEffective Time.
(cd) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives from and after the Effective Time, and (ii) in addition to, and not in substitution forfor or limitation of, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement, Merger Agreement
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that which by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, Company as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from the Effective Time, Parent shall, and shall cause the Surviving Company to, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 6.09 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.09) as amendments may incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be required finally determined by applicable Law during a court of competent jurisdiction that such periodPerson is not entitled to be indemnified pursuant to this Section 6.09(a).
(b) None of Parent or the Surviving Company shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action, litigation, claim or proceeding relating to any acts or omissions covered under this Section 6.09 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect the current directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ Company and officers’ liability insurance its Subsidiaries covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the directors’ and officers’ liability insurance policies of the Company and its Subsidiaries on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this AgreementAgreement (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy); provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b6.09(c) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 6.09 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 6.09 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 6.09 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 6.09 applies shall be third party beneficiaries of this Section 6.086.09).
(de) In the event that Parent, the Surviving Company, Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.086.09.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 6.09 is not prior to or in substitution for any such claims under such policies.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (American International Group Inc), Merger Agreement (Validus Holdings LTD)
Indemnification and Insurance. (a) From and after Following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company toindemnify, (i) indemnify defend and hold harmless each individual who at the Effective Time is, or at any time prior and advance expenses to the Effective Time was, a director or officer present and former directors and officers of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise)subsidiaries, and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, such Person presently or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with formerly serving at the request of the Company or such Subsidiary any of its subsidiaries as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including corporation, partnership, joint venture, trust or other enterprise or under or with respect to any employee benefit plan)plan (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) against all costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, penalties, amounts paid in each case under clause settlement or other liabilities (Acollectively, “Indemnified Liabilities”) incurred in connection with any claim, action, suit, proceeding or (B)investigation, atwhether civil, criminal, administrative or at any time prior toinvestigative, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement arising out of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts actions or omissions occurring at or prior to the Effective Time (and rights for including the transactions contemplated by this Plan), whether asserted or claimed prior to, at or after the Effective Time (x) to the same extent as such Persons are indemnified or have the right to advancement of expenses) as provided in expenses pursuant to the Company Organizational Governing Documents and the Organizational Documents of such Subsidiaries as indemnification agreements, if any, in effect on the date of this Agreement Plan with the Company or any of its subsidiaries and, in any agreement in existence as the case of the date directors and executive officers of this Agreement providing for indemnification between the Company (y) without limitation of, and any Indemnitee. Without limiting the foregoingin addition to, Parent, from and after the Effective Time, shall causeclause (x), to the fullest extent permitted under by law. In the event of any such Indemnified Liabilities, (i) Parent shall pay the reasonable fees and expenses of counsel selected by an Indemnified Party promptly after statements therefor are received and shall otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred and (ii) Parent and the applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement Indemnified Parties shall cooperate in the Company Organizational Documentsdefense of such matter. If any Indemnified Party is required to bring any action to enforce rights or to collect moneys due under this Plan and is successful in obtaining a decision that it is entitled to enforcement of any right or collection of any money in such action, which provisions Parent shall not be amendedreimburse such Indemnified Party for all of its expenses reasonably incurred in connection with bringing and pursuing such action including, repealedwithout limitation, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodreasonable attorneys’ fees and costs.
(b) For the six-year a period commencing immediately after of six years from the Effective Time, the Surviving Company Parent shall maintain in effect use its reasonable best efforts to provide directors’ and officers’ liability insurance from an (including excess coverage) and fiduciary liability insurance carrier with in respect of any Company Benefit Plans that serve to reimburse the same or better financial strength present and former officers and directors of the Company’s current carrier Company or any of its subsidiaries with respect to directors’ claims against such directors and officers’ liability insurance covering acts officers arising from facts or omissions events occurring at or prior to the Effective Time with respect to Indemnitees on (including, without limitation, the transactions contemplated by this Plan) which insurance shall contain at least the same coverage and amounts, and contain terms and scope with respect to such coverage, and in amount, conditions no less favorable advantageous, as that coverage currently provided by the Company, provided that in no event shall Parent be required to such individuals than those expend annually in the aggregate an amount in excess of such policies in effect on the date 250% of this Agreement; provided, however, that, if the annual premium premiums currently paid by the Company for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum PremiumInsurance Amount”), which Maximum Premium and provided further that if Parent is set forth in Section 6.08(bunable to maintain such policy (or such substitute policy) as a result of the Company Disclosure Letterpreceding proviso, then Parent shall provide or cause to be provided a policy obtain as much comparable insurance as is available for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess Insurance Amount. In lieu of the Maximum Premium. The Company may prior to insurance described in the Effective Time purchasepreceding sentence, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) yearsParent may, a six-year at its option, purchase prepaid or “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by coverage no less favorable than the Company and its Subsidiaries with respect to matters existing or occurring prior to coverage described in the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderpreceding sentence.
(c) Any Indemnified Party wishing to claim indemnification under Section 5.10(a), upon learning of any claim, action, suit, proceeding or investigation described above, shall notify Parent thereof; provided that the failure to so notify shall not affect the obligations of Parent under Section 5.10(a) unless and to the extent that Parent is actually and materially prejudiced as a result of such failure. Parent hereby acknowledges notice of all matters Previously Disclosed.
(d) If Parent or any of its successors or assigns shall consolidate with or merge into any other entity and shall not be the continuing or surviving entity of such consolidation or merger or shall transfer all or substantially all of its assets or deposits to any other entity, or engage in any similar transaction, then and in each case, Parent shall cause proper provision to be made so that the successors and assigns of Parent shall assume the obligations set forth in this Section 5.10.
(e) The provisions of this Section 6.08 5.10 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, Indemnified Party and his or her Representatives heirs and (ii) representatives. The indemnification rights granted in this Section 5.10 are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Indemnified Party may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (M&t Bank Corp), Merger Agreement (Provident Bankshares Corp)
Indemnification and Insurance. (a) From and after the Effective Time, Devon shall indemnify, defend and hold harmless to the Surviving Company shallfullest extent permitted under applicable law each person who is, or has been at any time prior to the Effective Time, an officer or director of Santa Xx Xxxxxx (or any Subsidiary or division thereof) and Parent shall cause each person who served at the Surviving Company torequest of Santa Xx Xxxxxx as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) indemnify Devon shall pay, as incurred, the fees and hold harmless expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to Devon, in advance of the final disposition of any such Action to the fullest extent permitted by applicable law, and, if required, upon receipt of any undertaking required by applicable law, and (ii) Devon will cooperate in the defense of any such matter; PROVIDED, HOWEVER, Devon shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided FURTHER, that Devon shall not be obligated pursuant to this Section 6.13(a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each individual who at similarly situated group.
(b) The parties agree that the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation, bylaws and any indemnification agreement of Santa Xx Xxxxxx and its Subsidiaries with respect to matters occurring through the Effective Time isTime, shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; PROVIDED, HOWEVER, that all rights to indemnification in respect of any Action pending or asserted or claim made within such period shall continue until the disposition of such Action or resolution of such claim.
(c) For a period of six years after the Effective Time, Devon shall cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are or at any time prior to the Effective Time was, a director or officer of were covered by Santa Xx Xxxxxx'x existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with Indemnified Parties than such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) existing insurance with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement acts or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeomissions, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) alleged acts or omissions by an Indemnitee in the Indemnitee’s capacity as a directoromissions, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in whether claims, actions or other proceedings relating thereto are commenced, asserted or claimed before or after the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingEffective Time); PROVIDED, Parent, from and that after the Effective Time, Devon shall cause, not be required to pay annual premiums in excess of 250% of the last annual premium paid by Devon prior to the fullest extent permitted under applicable Law, date hereof (the memorandum amount of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than which premiums are set forth as of the date of this Agreement in the Company Organizational DocumentsDevon Disclosure Letter), which provisions but in such case shall not be amended, repealed, or otherwise modified purchase as much coverage as reasonably practicable for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodamount.
(bd) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength The rights of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it each Indemnified Party hereunder shall be deemed in addition to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and any other rights such Indemnified Party may have under the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all certificate of incorporation or bylaws of Santa Xx Xxxxxx or any of its obligations thereunder.
(c) Subsidiaries, under the DGCL, or otherwise. The provisions of this Section 6.08 6.13 shall survive the consummation of the Merger and expressly are (i) intended to be for benefit each of the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Indemnified Parties.
(de) In the event that Parent, the Surviving Company, Devon or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent or Devon, as the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.086.13.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Santa Fe Snyder Corp), Merger Agreement (Santa Fe Snyder Corp)
Indemnification and Insurance. (a) From For a period beginning at the Effective Time and after ending on the sixth (6th) anniversary of the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify indemnify, defend and hold harmless each individual current and former director, officer and employee of the Company and any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the Effective Time is, request or at any time prior to for the Effective Time was, a director or officer benefit of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole relating to or in part, (A) the fact that an Indemnitee is connection with any action or was a director or officer of omission relating to their position with the Company or such Subsidiary its Subsidiaries occurring or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, alleged to have occurred before or at any time prior to, the Effective Time (including any Action Claim relating in whole or in part to the Transactions Agreement or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of limitation of liability, exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) expenses as provided in (A) the Company Organizational Charter Documents and the Organizational Documents respective organizational documents of such each of the Company’s Subsidiaries as currently in effect on the date of this Agreement or and (B) any indemnification agreements with an Indemnitee that are in any agreement in existence effect as of the date hereof and set forth on Section 5.8 of this Agreement providing for indemnification between the Company Disclosure Schedule, which shall in each case survive the Transactions and any Indemniteecontinue in full force and effect to the extent permitted by applicable Law. Without limiting the foregoing, Parent, from and after at the Effective Time, the Surviving Corporation shall, and Parent shall causecause the Surviving Corporation to, to cause the fullest extent permitted under applicable Law, the memorandum certificate of association incorporation and byeby-laws of the Surviving Company Corporation to contain include provisions no less favorable to the Indemnitees with respect to for limitation of liabilities of directors and officers, indemnification, advancement of expenses and indemnification exculpation of the Indemnitees no less favorable to the Indemnitees than are as set forth as of in the Company Charter Documents in effect on the date of this Agreement in the Company Organizational DocumentsAgreement, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, Indemnitees except as amendments may be required by applicable Law during such periodfor a period of six (6) years following the Effective Time.
(b) For a period beginning at the six-year period commencing immediately after Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Company Corporation shall, and Parent shall maintain cause the Surviving Corporation to, pay and advance to an Indemnitee any expenses (including fees and expenses of legal counsel) in effect directors’ and officers’ liability insurance from an insurance carrier connection with the same or better financial strength of the Company’s current carrier with respect any Claim relating to directors’ and officers’ liability insurance covering any acts or omissions occurring at covered under this Section 5.8 or prior the enforcement of an Indemnitee’s rights under this Section 5.8 as and when incurred to the Effective Time with respect fullest extent permitted under applicable Law; provided that the person to Indemnitees on terms and scope with respect whom expenses are advanced provides an undertaking to repay such coverageexpenses (but only to the extent required by applicable Law, and in amountthe Company Charter Documents, no less favorable to such individuals than those applicable organizational documents of such policies Subsidiaries of the Company or applicable indemnification agreements that are in effect on as of the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is hereof and set forth in on Section 6.08(b) 5.8 of the Company Disclosure Letter, then Parent shall provide or cause Schedule). Any determination required to be provided a policy for made with respect to whether an Indemnitee’s conduct complies with an applicable standard under applicable Law, the Company Charter Documents, applicable individuals with the best coverage as shall then be available at an annual premium not in excess organizational documents of Subsidiaries of the Maximum Premium. The Company Company, or applicable indemnification agreements, as the case may prior be, shall be made by independent legal counsel selected by the Indemnitee and reasonably acceptable to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for Parent.
(c) For a period of six (6) yearsyears from the Effective Time, a six-year prepaid “tail” policy on terms the Surviving Corporation shall, and conditions providing at least substantially equivalent benefits as Parent shall cause the current Surviving Corporation to, maintain in effect the coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the date hereof maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time either through the Company’s existing insurance provider or occurring prior to another provider reasonably selected by Parent; provided, however, that, after the Effective Time, including Parent shall not be required to pay annual premiums in excess of 200% of the Transactions. If last annual premium paid by the Company prior to the date hereof in respect of the coverages required to be obtained pursuant hereto (which premium is set forth on Section 3.21 of the Company Disclosure Schedule), but in such prepaid case shall purchase as much coverage as reasonably practicable for such amount; and provided, further, that in lieu of the foregoing insurance coverage, the Company may purchase “tail” policy has been obtained by insurance coverage, at a cost no greater than the Company, it shall aggregate amount which the Surviving Corporation would be deemed permitted to satisfy all obligations to obtain insurance pursuant to spend during the six–year period provided for in this Section 6.08(b) and 5.8(c), that provides coverage no materially less favorable than the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereundercoverage described above.
(cd) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution forfor or limitation of, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(de) In connection with any claim for indemnification pursuant to any policy, agreement or governing document contemplated by this Section 5.8, Parent shall, and shall cause the Surviving Corporation to, provide such information and updates regarding such claim (including regarding the status of, and material developments arising in connection with, the defense thereof) as reasonably requested from time to time by Indemnitees party to such claim.
(f) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Asset Acceptance Capital Corp), Merger Agreement (Encore Capital Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that which by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is may be guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from the Effective Time, Parent shall cause the Surviving Company to advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.08 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.08) as amendments may incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be required by applicable Law during determined that such periodperson is not entitled to be indemnified pursuant to this Section 5.08(a).
(b) None of Parent or the Surviving Company shall settle, compromise or consent to the entry of any judgment in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.08 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies policy in effect on the date of this AgreementAgreement (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy); provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may in consultation with Parent, and at the request of Parent shall, prior to the Effective Time Time, purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.08(c) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 5.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.08 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.08 applies shall be third third-party beneficiaries of this Section 6.085.08).
(de) In the event that Parent, the Surviving Company, Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company Surviving Company or entity of such consolidation, amalgamation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.085.08.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Montpelier Re Holdings LTD), Merger Agreement (Endurance Specialty Holdings LTD)
Indemnification and Insurance. (a) From NBC and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Companyjointly and severally, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)agree, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue law or under the Surviving Company's Certificate of any rule of law attaches to such Indemnitee in respect of any fraud Incorporation or dishonesty of which such Indemnitee is guilty in relation By-laws, indemnify and hold harmless, each present and former (x) director, (y) officer or (z) solely to the Companyextent a party to an Indemnification Agreement, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations employee, of the Company or any of its Subsidiaries, and such Subsidiaries their respective estates, heirs, personal representatives successors and assigns (each, an "Indemnified Party", and collectively, the "Indemnified Parties") against any costs or expenses (including reasonable fees and expenses of counsel) as incurred, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (collectively, an "Action") (x) arising out of or pertaining to the Indemnitees in Transactions, or (y) otherwise with respect of indemnification and exculpation from liabilities for to any acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, in each case to the same extent as provided in the Company's amended and restated Certificates of Incorporation, By-laws or indemnification contracts with any such Indemnified Parties (to the extent such contracts have been disclosed to NBC and are identified in Section 6.5 of the Company Organizational Documents and Disclosure Schedule) (collectively, the Organizational Documents of such Subsidiaries "Indemnification Agreements"), as in effect on the date hereof, in each case for a period of six years after the date hereof, provided that any such indemnification of an employee hereunder pursuant to clause (z) of this Section 6.5(a) shall be limited to that provided in the Indemnification Agreement to which such employee is a party. In the event of any such Action, (whether arising before or in after the Effective Time) and subject to the specific terms of any agreement in existence as of indemnification contract, (i) any counsel retained by the date of this Agreement providing Indemnified Parties for indemnification between any period after the Company and any Indemnitee. Without limiting the foregoingEffective Time shall be reasonably satisfactory to NBC, Parent, from and (ii) after the Effective Time, NBC shall causepay the reasonable fees and expenses of such counsel, to the fullest extent permitted under applicable Lawpromptly after statements therefor are received, the memorandum of association and bye-laws of (iii) the Surviving Company and NBC will cooperate in the defense of any such Action; provided, however, that in the event any claim or claims for indemnification are made within such six year period, all rights to contain provisions no less favorable indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims; provided, further, that: (A) promptly after receipt by an Indemnified Party of notice of any such Action, the Indemnified Party shall, if a claim in respect thereof is to be made against the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of Surviving Company notify the date Surviving Company in writing of this Agreement in claim or the Company Organizational Documents, which provisions shall commencement of that Action (although the failure to provide such notice will not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the IndemniteesIndemnified Party hereunder except to the extent NBC is prejudiced by such failure); (B) the Surviving Company shall be entitled to participate in the defense of any such Action, except and, to the extent it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party or Indemnified Parties, as amendments the case may be; (C) the Surviving Company shall not, in connection with any one such Action or separate but substantially similar or related Actions in the same jurisdiction arising out of the same general allegations or circumstances, be required by applicable Law during liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such periodIndemnified Parties; (D) no Indemnified Party may settle any such Action, without the prior written consent of the Surviving Company; and (E) the Surviving Company shall not settle any such Action, unless the Indemnified Party that is subject of such action is fully released as a result thereof.
(b) For the six-year period commencing immediately after the Effective TimeIn addition, the Surviving Company shall maintain in effect for six years from the Effective Time policies of directors’ ' and officers’ ' liability insurance from an insurance carrier with containing terms and conditions which are not less advantageous than any such policies maintained by the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or Company prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on (the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”"D&O Insurance"), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior up to and including the Effective Time, including Time and having the Transactions. If maximum available coverage under any such prepaid “tail” policy has been obtained D&O Insurance policies; provided that (i) the Surviving Company following the Merger shall not be required to spend in excess of 200% of the annual aggregate premiums currently paid by the CompanyCompany for such insurance; provided, it shall further, that if the Surviving Company following the Merger would be deemed required to satisfy all obligations spend in excess of such amount per year to obtain insurance pursuant to this Section 6.08(b) and having the maximum available coverage under the D&O Insurance policies, the Surviving Company shall use its reasonable best efforts will be required to cause spend up to such policy amount to maintain or procure the maximum amount of such (or similar) coverage that is available at that cost and (ii) such policies may in the sole discretion of the Surviving Company be maintained in one or more "tail" policies for all or any portion of the full force and effect, for its full term, and to honor all of its obligations thereundersix year period.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ ' and officers’ ' insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, directors or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 6.5 is not prior to or in substitution for any such claims under such policies.
(d) This Section 6.5 shall survive the consummation of the Transactions, is intended to benefit the Indemnified Parties and the officers and directors of the Company, shall be binding on all successors and assigns of NBC and the Surviving Company and shall be enforceable by the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (NBC Internet Inc), Merger Agreement (General Electric Co)
Indemnification and Insurance. (a) From and after the Effective Time, Newco shall indemnify, defend and hold harmless to the Surviving Company shallfullest extent permitted under applicable law each person who is, or has been at any time prior to the Effective Time, an officer or director of PZE or DVN (or any Subsidiary or division thereof) and Parent shall cause each person who served at the Surviving Company torequest of PZE or DVN as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) indemnify Newco shall pay, as incurred, the fees and hold harmless expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to Newco, in advance of the final disposition of any such Action to the fullest extent permitted by applicable law, and, if required, upon receipt of any undertaking required by applicable law, and (ii) Newco will cooperate in the defense of any such matter; provided, however, Newco shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further, that Newco shall not be obligated pursuant to this Section 7.13 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each individual who at similarly situated group.
(b) The parties agree that the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation, bylaws and any indemnification agreement of DVN and PZE and their Subsidiaries with respect to matters occurring through the Effective Time isTime, shall survive the Merger and shall continue in full force and effect for a period of seven years from the Effective Time; provided, however, that all rights to indemnification in respect of any Action pending or asserted or claim made within such period shall continue until the disposition of such Action or resolution of such claim.
(c) For a period of seven years after the Effective Time, Newco shall cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are or at any time prior to the Effective Time was, a director or officer of were covered by DVN's and PZE's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with Indemnified Parties than such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) existing insurance with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement acts or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeomissions, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) alleged acts or omissions by an Indemnitee in the Indemnitee’s capacity as a directoromissions, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in whether claims, actions or other proceedings relating thereto are commenced, asserted or claimed before or after the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingEffective Time); provided, Parent, from and that after the Effective Time, Newco shall causenot be required to pay annual premiums in excess of 250% of the last annual premium paid by DVN or in excess of 250% of the last annual premium paid by PZE, as the case may be, prior to the fullest extent permitted under applicable Law, date hereof (the memorandum amount of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than which premiums are set forth as of the date of this Agreement in the Company Organizational DocumentsDVN Disclosure Letter and PZE Disclosure Letter), which provisions but in such case shall not be amended, repealed, or otherwise modified purchase as much coverage as reasonably practicable for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodamount.
(bd) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength The rights of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it each Indemnified Party hereunder shall be deemed in addition to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) any other rights such Indemnified Party may have under the certificate of incorporation or bylaws of DVN and PZE or any of their Subsidiaries, under the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effectDGCL, for its full term, and to honor all of its obligations thereunder.
(c) OGCA or otherwise. The provisions of this Section 6.08 7.13 shall survive the consummation of the Merger and expressly are (i) intended to be for benefit each of the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Indemnified Parties.
(de) In the event that Parent, the Surviving Company, Newco or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent or Newco, as the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.087.13.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pennzenergy Co), Agreement and Plan of Merger (Devon Energy Corp /Ok/)
Indemnification and Insurance. (a) From and after the Effective Time, the Company shall provide exculpation and indemnification for each Person who is now or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, or director of the Company, (the “Indemnified Parties”) which is at least as favorable to such persons as the exculpation and indemnification provided to the Indemnified Parties by the Company immediately prior to the Effective Time in their respective Organizational Documents, as in effect on the date hereof; provided, that such exculpation and indemnification covers actions on or prior to the Effective Time, including all transactions contemplated by this Agreement, the Merger Agreement, and the Ancillary Agreement.
(b) In addition to the rights provided in Section 7.10(a), in the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any action by or on behalf of any or all security holders of the Company or BPW, or any Subsidiary of the Company, or by or in the right of the Company or BPW, or any Subsidiary of the Company, or any claim, action, suit, proceeding or investigation (collectively, for this Section 7.10, “Claims”) in which any Indemnified Party is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was an officer or director of the Company or any action or omission or alleged action or omission by such Person in his capacity as an officer or director, or (ii) this Agreement, the Merger Agreement, and the Ancillary Agreements and the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the Company and the Surviving Company (the “Indemnifying Parties”) shall from and after the Effective Time jointly and severally indemnify and hold harmless the Indemnified Parties from and against any losses, claims, liabilities, expenses (including reasonable attorneys’ fees and expenses), judgments, fines or amounts paid in settlement arising out of or relating to any such Claims. The Company, the Surviving Company and the Indemnified Parties hereby agree to use their reasonable best efforts to cooperate in the defense of such Claims. In connection with any such Claim, the Indemnified Parties shall have the right to select and retain one counsel, at the cost of the Indemnifying Parties, subject to the consent of the Indemnifying Parties (which consent shall not be unreasonably withheld or delayed) and more than one counsel if, in the opinion of such counsel, the interests of such Indemnified Parties with respect to such Claim diverge or could be reasonably expected to diverge. In addition, after the Effective Time, in the event of any such threatened or actual Claim, the Indemnifying Parties shall promptly pay and advance reasonable expenses and costs incurred by each Indemnified Person as they become due and payable in advance of the final disposition of the Claim to the fullest extent and in the manner permitted by law. Notwithstanding the foregoing, the Indemnifying Parties shall not be obligated to advance any expenses or costs prior to receipt of an undertaking by or on behalf of the Indemnified Party, such undertaking to be accepted without regard to the creditworthiness of the Indemnified Party, to repay any expenses advanced if it shall ultimately be determined that the Indemnified Party is not entitled to be indemnified against such expense. Notwithstanding anything to the contrary set forth in this Agreement, the Indemnifying Parties (i) shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld or delayed), and (ii) shall not have any obligation hereunder to any Indemnified Party to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable law. In the event of a final and non-appealable determination by a court that any payment of expenses is prohibited by applicable law, the Indemnified Party shall promptly refund to the Indemnifying Parties the amount of all such expenses theretofore advanced pursuant hereto. Any Indemnified Party wishing to claim indemnification under this Section 7.10, upon learning of any such Claim, shall promptly notify the Indemnifying Parties of such Claim and the relevant facts and circumstances with respect thereto; provided, however, that the failure to provide such notice shall not affect the obligations of the Indemnifying Parties except to the extent such failure to notify actually prejudices the Indemnifying Parties’ ability to defend such Claim.
(c) For six (6) years after the Effective Time, the Company shall, and Parent or shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy, on terms and scope with respect to such coverage, coverage and in amount, amount no less favorable in the aggregate to the Company’s directors and officers, as the case may be, currently covered by such individuals insurance than those of such policies policy in effect on the date of this Agreement; Agreement (provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of that the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for may substitute therefor policies of at least the applicable individuals with the best same coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on containing terms and conditions providing at least substantially equivalent benefits as the current policies which are no less advantageous); provided that, in satisfying such obligation, none of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any shall be obligated to pay premiums per annum in excess of their respective directors, officers, or other employees, it being understood and agreed 300% of the aggregate amount per annum that the indemnification provided Company paid for such coverage in its last full fiscal year prior to the date hereof; provided, further that, in the event that the aggregate premiums for maintaining such insurance for the benefit of the persons currently covered by the Company’s officers and directors insurance policy under this Section 7.10(c) are in excess of 300% of the aggregate amount per annum, then the Company shall only be obligated to maintain such insurance coverage as is reasonably available for such amount.
(d) This Section 7.10 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and their successors, assigns and heirs and shall be binding on all successors and assigns of the Company, including the Surviving Company. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 6.08 is not prior 7.10 and the Company acknowledges and agrees that each Indemnified Party would suffer irreparable harm and that no adequate remedy at law exists for a breach of such covenants and such Indemnified Party shall be entitled to or injunctive relief and specific performance in substitution for the event of any such claims under such policiesbreach of any provision in this Section 7.10.
Appears in 2 contracts
Samples: Repurchase, Repayment and Support Agreement (Talbots Inc), Repurchase, Repayment and Support Agreement (BPW Acquisition Corp.)
Indemnification and Insurance. (a) For a period of six (6) years following the Effective Time, the Surviving Corporation shall maintain in effect the exculpation, indemnification and advancement of expenses provisions of the Company’s and any Company Subsidiary’s certificates of incorporation and bylaws or similar organizational documents as in effect as of the date hereof or in any indemnification agreements of the Company or its Subsidiaries with any of their respective directors or officers copies of which have been provided to Parent prior to the date hereof, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who at the Effective Time were current or former directors or officers of the Company or any of its Subsidiaries; provided, however, that all rights to indemnification in respect of any Action pending or asserted or any claim made within such period shall continue until the disposition of such Action or resolution of such claim. From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Corporation and its Subsidiaries to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.9.
(b) For a period of six (6) years from the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent the Company towas permitted by applicable Law (including, (i) for the avoidance of doubt, Section 145 of the DGCL), provide indemnification to its directors and officers, indemnify and hold harmless (and advance funds in respect of each individual who at of the Effective Time isforegoing, or at any time prior subject to the Effective Time was, a undertaking described below) each current and former director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and or administrators, an “Indemnitee” and, collectively, the “IndemniteesIndemnified Party”) with respect against any costs or expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to all claims, liabilities, losses, damageseach Indemnified Party following receipt of an undertaking by or on behalf of such Person to repay such amount if it is ultimately determined by a final non-appealable order of a court of competent jurisdiction that such Person was not entitled to indemnification under this Section 5.9), judgments, fines, penaltieslosses, costs (including claims, damages, liabilities and amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (actual or threatened claim, charge, action, suit, litigation, proceeding, audit or investigation, whether civil, criminal, administrative, administrative or investigativeinvestigative (an “Action”), whenever asserted, based on or arising out of, in whole relating to or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company any action or such Subsidiary as a director, officer, employee, agent, trustee, omission occurring or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) alleged to have occurred whether before or (B), at, or at any time prior to, after the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring in connection with such Persons serving as an officer or director in any entity if such service was at the request or for the benefit of the Company), and whether asserted or claimed prior to, at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time. For the avoidance of doubt, nothing contained herein shall cause, require Parent or the Surviving Corporation to indemnify any Indemnified Parties to the fullest extent such indemnification would not be permitted to be provided by the Company under applicable Lawthe DGCL (including, for the memorandum avoidance of association and bye-laws doubt, Section 145 of the DGCL). In the event of any such Action, Parent and the Surviving Company Corporation shall cooperate with the Indemnified Party in the defense of any such Action. Any Indemnified Party wishing to contain provisions no less favorable to the Indemnitees claim indemnification under this Section 5.9(b) with respect to limitation any Action shall notify Parent of liabilities of directors and officerssuch Action promptly after becoming aware thereof, advancement of expenses and indemnification than are set forth as of but the date of this Agreement in the Company Organizational Documents, which provisions failure to so notify shall not be amended, repealed, or otherwise modified for relieve Parent of any liability it may have to such Indemnified Party except to the extent such failure actually prejudices Parent.
(c) For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, Parent and the Surviving Company Corporation shall maintain cause to be maintained in effect the current policies of directors’ and officers’ liability insurance from an and fiduciary liability insurance carrier with maintained by the same or better financial strength of the Company’s current carrier Company and its Subsidiaries with respect to directors’ and officers’ liability insurance covering acts matters arising on or omissions occurring at or prior to before the Effective Time with respect to Indemnitees on terms benefits and scope with respect to such coverage, and levels of coverage at least as favorable as provided in amount, no less favorable to such individuals than those the Company’s existing policies as of such policies in effect on the date of this Agreement; provided, howeveror the Surviving Corporation shall, thatand Parent shall cause the Surviving Corporation to, if the annual premium use reasonable best efforts to purchase comparable insurance for such insurance shall exceed 300% six (6)-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the current annual premium (such 300% thresholddate of this Agreement. At the Company’s option, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may purchase, prior to the Effective Time purchaseTime, for an aggregate amount not to exceed the aggregate Maximum Premium for a six (6) years, a six-year 6)-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters existing arising on or occurring before the Effective Time, covering without limitation the transactions contemplated hereby. If such tail prepaid policy has been obtained by the Company prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it Parent shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to honor all be honored by the Surviving Corporation, and no other party shall have any further obligation to purchase or pay for insurance hereunder. In no event shall the Company, Parent or the Surviving Corporation, as applicable, be required to pay annual premiums in excess of its obligations thereunder300% of the last annual premium paid by the Company prior to the date hereof (the “Base Amount”) in respect of such “tail” policy or other coverage required to be obtained pursuant to this Section 5.9, and if the cost of such policy or coverage would otherwise exceed the Base Amount, the Company, Parent or the Surviving Corporation, as applicable, shall purchase as much coverage as reasonably practicable for the Base Amount.
(cd) The provisions rights of this Section 6.08 are (i) intended to be for the benefit of, and each Indemnified Party hereunder shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution forlimitation of, any other rights to indemnification or contribution that any such individual Indemnified Party may have under the certificates of incorporation or bylaws or other organizational documents of the Company Organizational Documentsor any of its Subsidiaries or the Surviving Corporation, by Contractany other indemnification arrangement, the DGCL or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries provisions of this Section 6.08)5.9 shall survive the consummation of the Merger and expressly are intended to benefit, and are enforceable by, each of the Indemnified Parties.
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each either such case, Parent shall cause proper provision shall to be made so that the successors and assigns of Parent or the Surviving Company continuing or surviving corporation, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.085.9.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Verso Paper Corp.), Merger Agreement (NewPage Holdings Inc.)
Indemnification and Insurance. (a) From and after the Effective Time14.1 ZOGENIX shall defend, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time isDESITIN, or at any time prior to the Effective Time wasits Affiliates and its and their officers, a director or officer of the Companydirectors, a Subsidiary of the Companyemployees, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company agents and contractors (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesDESITIN Parties”) with respect to from and against any and all claims, liabilitiesactions, demands, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. reasonable expenses (including fees reasonable legal and expenses expert fees) made or brought by Third Parties (“Claims”) arising from or in connection with:
(a) the personal injury or death caused by the defective design and/or manufacture of legal counselthe Product when supplied to DESITIN by ZOGENIX or its designee; or
(b) the breach of the warranties given by ZOGENIX under this Agreement, or
(c) the negligence of ZOGENIX Parties (as defined below) in the research, development, marketing, distribution, sale or use of the Product before the Effective Date both in or outside the Territory, or
(d) the negligence of ZOGENIX Parties in the research, development, marketing, distribution, sale or use of the Product following the Effective Date outside the Territory, provided that, in each case, such Claims do not arise from the negligence or wilful default of the DESITIN Parties.
14.2 DESITIN shall defend, indemnify and hold harmless ZOGENIX, its Affiliates and its and their officers, directors, employees, agents and contractors (the “ZOGENIX Parties”) from and against any and all Claims arising from or in connection with:
(a) the development, marketing, distribution, sale or use of the Product in the Territory after the Effective Date;
(b) the negligence by DESITIN Parties in relation to the development, marketing, distribution, sale or use of the Product in the Territory after the Effective Date; or
(c) the breach of the warranties given by DESITIN under this Agreement, provided that, in each case, such Claims do not arise from the negligence or wilful default of the ZOGENIX Parties. For the avoidance of doubt DESITIN shall in no event be liable for any claims arising from or in connection with any Action (whether civilthe infringement of Third Party Rights, criminalparticularly patents and trademarks, administrative, caused by the manufacture or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer composition of the Company Product or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent use of the Company or such Subsidiary or taken at Trademark.
14.3 Each Party shall promptly provide the request other Party with copies of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee all papers and official documents received in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, Claims and shall cooperate as finally determined reasonably requested by the Supreme Court other Party in the defence of Bermuda; any Claims. The Party which is indemnifying the other Party hereunder shall have control of, and (ii) assume all obligations discretion in, the handling of the Company and defense and/or settlement of any such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingClaim, Parentincluding, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Lawwithout limitation, the memorandum selection of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreementdefense counsel; provided, however, thatthat the indemnified Party may take any appropriate action necessary to preserve or avoid prejudice to its interests, if or the annual premium interests of the indemnifying Party, in the event that (1) notice to the indemnifying Party cannot be given in sufficient time for such Party to take action, or (2) the indemnifying Party, after prompt notice and inquiry from the indemnified
14.4 Each Party shall maintain, at its own cost, comprehensive product liability insurance shall exceed 300% of the current annual premium (and general commercial liability insurance adequate to cover their respective obligations under this Agreement in such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries Parties customarily maintain with respect to matters existing its other products and which is reasonable and customary in the pharmaceutical industry in their respective territories for companies of comparable size and activities. Each Party shall maintain such insurance policy for not less than [***] ([***]) years following the expiry or occurring prior termination of this Agreement. A certificate of insurance and any other documentation necessary to prove compliance with this provision will be provided to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderother Party upon request.
14.5 TO THE FULL EXTENT PERMITTED BY LAW, APART FROM THE FOREGOING WARRANTIES AND INDEMNITY OR SUCH WARRANTIES OR INDEMNITY AS MAY BE CONTAINED WITHIN THE MANUFACTURING AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, ARISING FROM CONTRACT OR TORT (c) The provisions of this Section 6.08 are (i) intended to be for the benefit ofEXCEPT FRAUD), and shall be enforceable byIMPOSED BY STATUTE OR OTHERWISE, each IndemniteeRELATING TO THE PRODUCTS AND/OR ANY LICENSED TECHNOLOGY, his or her heirsINCLUDING ANY WARRANTIES AS TO MERCHANTABILITY, and his or her Representatives and (ii) in addition toFITNESS FOR PURPOSE, and not in substitution forCORRESPONDENCE WITH DESCRIPTION, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)OR NON-INFRINGEMENT.
(d) In the event that Parent14.6 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, the Surviving CompanyINCIDENTAL OR SPECIAL DAMAGES, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidationINCLUDING ANY LOSS OF PROFITS, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Licensing and Distribution Agreement (Zogenix Inc), Licensing and Distribution Agreement (Zogenix Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall provide exculpation and indemnification for each Person who is now or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, or director of BPW, (the “Indemnified Parties”) which is at least as favorable to such persons as the exculpation and indemnification provided to the Indemnified Parties by BPW immediately prior to the Effective Time in their respective Organizational Documents, as in effect on the date hereof; provided, that such exculpation and indemnification covers actions on or prior to the Effective Time, including all transactions contemplated by this Agreement.
(b) In addition to the rights provided in Section 6.10(a), in the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including any action by or on behalf of any or all security holders of the Company or BPW, or any Subsidiary of the Company, or by or in the right of the Company or BPW, or any Subsidiary of the Company, or any claim, action, suit, proceeding or investigation (collectively, for this Section 6.10, “Claims”) in which any Indemnified Party is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was an officer or director of BPW or any action or omission or alleged action or omission by such Person in his capacity as an officer or director, or (ii) this Agreement or the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the Company and the Surviving Company (the “Indemnifying Parties”) shall from and after the Effective Time jointly and severally indemnify and hold harmless the Indemnified Parties from and against any losses, claims, liabilities, expenses (including reasonable attorneys’ fees and expenses), judgments, fines or amounts paid in settlement arising out of or relating to any such Claims. The Company, the Surviving Company and the Indemnified Parties hereby agree to use their reasonable best efforts to cooperate in the defense of such Claims. In connection with any such Claim, the Indemnified Parties shall have the right to select and retain one counsel, at the cost of the Indemnifying Parties, subject to the consent of the Indemnifying Parties (which consent shall not be unreasonably withheld or delayed) and more than one counsel if, in the opinion of such counsel, the interests of such Indemnified Parties with respect to such Claim diverge or could be reasonably expected to diverge. In addition, after the Effective Time, in the event of any such threatened or actual Claim, the Indemnifying Parties shall promptly pay and advance reasonable expenses and costs incurred by each Indemnified Person as they become due and payable in advance of the final disposition of the Claim to the fullest extent and in the manner permitted by law. Notwithstanding the foregoing, the Indemnifying Parties shall not be obligated to advance any expenses or costs prior to receipt of an undertaking by or on behalf of the Indemnified Party, such undertaking to be accepted without regard to the creditworthiness of the Indemnified Party, to repay any expenses advanced if it shall ultimately be determined that the Indemnified Party is not entitled to be indemnified against such expense. Notwithstanding anything to the contrary set forth in this Agreement, the Indemnifying Parties (i) shall not be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld or delayed), and (ii) shall not have any obligation hereunder to any Indemnified Party to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable law. In the event of a final and non-appealable determination by a court that any payment of expenses is prohibited by applicable law, the Indemnified Party shall promptly refund to the Indemnifying Parties the amount of all such expenses theretofore advanced pursuant hereto. Any Indemnified Party wishing to claim indemnification under this Section 6.10, upon learning of any such Claim, shall promptly notify the Indemnifying Parties of such Claim and the relevant facts and circumstances with respect thereto; provided, however, that the failure to provide such notice shall not affect the obligations of the Indemnifying Parties except to the extent such failure to notify actually prejudices the Indemnifying Parties’ ability to defend such Claim.
(c) For six years after the Effective Time, the Company shall, and Parent or shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the CompanyBPW’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those persons who are currently covered by BPW’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, coverage and in amount, amount no less favorable in the aggregate to BPW’s directors and officers, as the case may be, currently covered by such individuals insurance than those of such policies policy in effect on the date of this Agreement; Agreement (provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of that the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for may substitute therefor policies of at least the applicable individuals with the best same coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on containing terms and conditions providing at least substantially equivalent benefits as the current policies which are no less advantageous); provided that, in satisfying such obligation, none of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries shall be obligated to pay premiums per annum in excess of 300% of the aggregate amount per annum that BPW paid for any of their respective directorssuch coverage in its last full fiscal year prior to the date hereof, officerswhich amount BPW has disclosed to the Company prior to the date hereof; provided further that, or other employees, it being understood and agreed in the event that the indemnification provided aggregate premiums for maintaining such insurance for the benefit of the persons currently covered by BPW’s officers and directors insurance policy under this Section 6.10(c) are in excess of 300% of the aggregate amount per annum, then the Company shall only be obligated to maintain such insurance coverage as is reasonably available for such amount.
(d) This Section 6.10 is intended for the irrevocable benefit of, and to grant third-party rights to, the Indemnified Parties and their successors, assigns and heirs and shall be binding on all successors and assigns of the Company, including the Surviving Company. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 6.08 is not prior 6.10 and the Company acknowledges and agrees that each Indemnified Party would suffer irreparable harm and that no adequate remedy at law exists for a breach of such covenants and such Indemnified Party shall be entitled to or injunctive relief and specific performance in substitution for the event of any such claims under such policiesbreach of any provision in this Section 6.10.
Appears in 2 contracts
Samples: Merger Agreement (Talbots Inc), Merger Agreement (BPW Acquisition Corp.)
Indemnification and Insurance. (a) From and after Following the Effective Time, the Surviving Company shallPNC shall indemnify, and Parent shall cause the Surviving Company to, (i) indemnify defend and hold harmless each individual who at the Effective Time is, or at any time prior and advance expenses to the Effective Time waspresent and former directors, a director or officer officers, employees and agents of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of subsidiaries (including the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromiseBank), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, person presently or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with formerly serving at the request of the Company or such Subsidiary any of its subsidiaries as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including corporation, partnership, joint venture, trust or other enterprise or under or with respect to any employee benefit plan)plan (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) against all costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, penalties, amounts paid in each case under clause settlement or other liabilities (Acollectively, “Indemnified Liabilities”) incurred in connection with any claim, action, suit, proceeding or (B)investigation, atwhether civil, criminal, administrative or at any time prior toinvestigative, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement arising out of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts actions or omissions occurring at or prior to the Effective Time (and rights for including the transactions contemplated by this Plan), whether asserted or claimed prior to, at or after the Effective Time (x) to the same extent as such persons are indemnified or have the right to advancement of expenses) as provided in expenses pursuant to the Company Organizational Governing Documents and the Organizational Documents of such Subsidiaries as indemnification agreements, if any, in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between Plan with the Company or any of its subsidiaries and any Indemnitee. Without limiting the foregoing(y) without limitation of, Parentand in addition to, from and after the Effective Time, shall causeclause (x), to the fullest extent permitted under applicable Lawby law. In the event of any such Indemnified Liabilities, (i) PNC shall pay the memorandum reasonable fees and expenses of association counsel selected by an Indemnified Party promptly after statements therefor are received and bye-laws shall otherwise advance to such Indemnified Party upon request reimbursement of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors documented expenses reasonably incurred and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement (ii) PNC shall cooperate in the Company Organizational Documentsdefense of such matter. If any Indemnified Party is required to bring any action to enforce rights or to collect moneys due under this Plan and is successful in obtaining a decision that it is entitled to enforcement of any right or collection of any money in such action, which provisions PNC shall not be amendedreimburse such Indemnified Party for all of its expenses reasonably incurred in connection with bringing and pursuing such action including, repealedwithout limitation, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodreasonable attorneys’ fees and costs.
(b) For the six-year a period commencing immediately after of six years from the Effective Time, the Surviving Company PNC shall maintain in effect use its reasonable best efforts to provide directors’ and officers’ liability insurance from an (including excess coverage) and fiduciary liability insurance carrier with in respect of any Company Benefit Plans that serves to reimburse the same or better financial strength present and former officers and directors of the Company’s current carrier Company or any of its subsidiaries (including the Company Bank) with respect to directors’ claims against such directors and officers’ liability insurance covering acts officers arising from facts or omissions events occurring at or prior to the Effective Time with respect to Indemnitees on terms (including, without limitation, the transactions contemplated by this Plan) which insurance shall contain at least the same coverage and scope with respect to such coverageamounts, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on contain terms and conditions providing at least substantially equivalent benefits no less advantageous, as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained that coverage currently provided by the Company, it shall be deemed provided, that if PNC is unable to satisfy all obligations to maintain or obtain the insurance pursuant to called for by this Section 6.08(b) and the Surviving Company shall 5.11(b), PNC will use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderobtain as much comparable insurance as is reasonably available.
(c) Any Indemnified Party wishing to claim indemnification under Section 5.11(a), upon learning of any claim, action, suit, proceeding or investigation described above, shall notify PNC thereof; provided that the failure to so notify shall not affect the obligations of PNC under Section 5.11(a) unless and to the extent that PNC is actually and materially prejudiced as a result of such failure. PNC hereby acknowledges notice of all matters Previously Disclosed.
(d) If PNC or any of its successors or assigns shall consolidate with or merge into any other entity and shall not be the continuing or surviving entity of such consolidation or merger or shall transfer all or substantially all of its assets or deposits to any other entity, or engage in any similar transaction, then and in each case, PNC shall cause proper provision to be made so that the successors and assigns of PNC shall assume the obligations set forth in this Section 5.11.
(e) The provisions of this Section 6.08 5.11 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, Indemnified Party and his or her Representatives heirs and (ii) representatives. The indemnification rights granted in this Section 5.11 are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Indemnified Party may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (PNC Financial Services Group Inc), Merger Agreement (Riggs National Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under unless otherwise required by applicable Law, the memorandum certificate of association incorporation and byeby-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from the Effective Time, Parent shall cause the Surviving Company to, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.08 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.08) as amendments may incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be required finally determined by applicable Law during a court of competent jurisdiction that such periodPerson is not entitled to be indemnified pursuant to this Section 5.08(a).
(b) None of Parent or the Surviving Company shall settle, compromise or consent to the entry of any judgment in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.08 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year six (6)-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect substitute the current directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ Company and officers’ liability insurance its Subsidiaries covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the directors’ and officers’ liability insurance policies of the Company and its Subsidiaries with a “tail” policy, issued by reputable insurers, on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may with the consent of Parent (not to be unreasonably withheld), and at the request of Parent shall (in which case, at Parent’s expense), prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.08(c) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 5.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.08 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.08 applies shall be third third-party beneficiaries of this Section 6.085.08).
(de) In the event that Parent, the Surviving Company, Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.085.08.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Hartford Financial Services Group Inc/De), Merger Agreement (Navigators Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent Purchaser shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at to assume the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) obligations with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part rights to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time (now existing in favor of the current or former directors or officers of the Company and rights for advancement of expenses) its Subsidiaries as provided in the Company Organizational Documents respective articles or certificates of incorporation, bylaws or other organization documents or any written indemnification Contract between such directors or officers and the Organizational Documents of such Subsidiaries Company (in each case, as in effect on the date of this Agreement or in any agreement in existence hereof), without further action, as of the date Effective Time and such obligations shall survive the Share Exchange and shall continue in full force and effect in accordance with their terms. Furthermore, Purchaser and the Company agree to jointly and severally indemnify, defend and hold the current or former directors or officers of this Agreement providing for indemnification between the Company and its Subsidiaries harmless from and against any Indemnitee. Without limiting claims, loss, damages or liabilities arising out of any action taken or omitted by them in such capacities in connection with the foregoing, Parent, from Transactions.
(b) From and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, Purchaser or the Surviving Company, Company or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company Company or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its stock, properties and or assets to any Person, then, and in each such case, proper provision shall be made so that the successors and or assigns of Parent Purchaser or the Surviving Company Company, as the case may be, shall assume all of succeed to the obligations thereof set forth in this Section 6.087.7.
(ec) Nothing For six (6) years after the Acceptance Time, the Company shall maintain in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to effect the Company’s current directors’ and officers’ liability insurance claims under any in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company’s directors’ and officers’ liability insurance policy that is or (a complete and accurate copy of which has been in existence heretofore delivered to Purchaser), on terms with respect to such coverage and amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that the Company or any of may substitute therefor policies with reputable and financially sound carriers providing at least the same coverage and amount and containing terms and conditions that are no less favorable to the covered persons; provided, further, that in satisfying its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in obligation under this Section 6.08 is 7.7(c), the Company shall not be obligated to pay more than 300% of the annual premiums currently paid by the Company for such insurance; provided, further, however, that in lieu of the foregoing insurance coverage, the Company may purchase “tail” insurance coverage that provides coverage with respect to occurrences prior to the Effective Time no less favorable than the coverage described above.
(d) The provisions of this Section 7.7 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for for, any other rights to indemnification or contribution that any such claims person may have by Contract or otherwise. Purchaser and the Company agree to cause any successor to the Company’s business or assignee of this Agreement to assume the Company’s obligations under such policiesthis Section 7.7.
Appears in 2 contracts
Samples: Share Exchange Agreement (Res Care Inc /Ky/), Share Exchange Agreement (Res Care Inc /Ky/)
Indemnification and Insurance. (a) From The Articles of Incorporation and after the Effective Time, By-laws of the Surviving Corporation shall contain provisions related to the indemnification of directors and officers substantially similar to those provisions contained in the Articles of Incorporation and By-laws of the Company shallas of the date hereof, and Parent which provisions shall cause the Surviving Company tonot be amended, (i) indemnify and hold harmless each individual who at repealed or otherwise modified for a period of six years from the Effective Time is, in any manner that would affect adversely the rights thereunder of individuals who at or at any time prior to the Effective Time waswere directors, a director officers or officer employees of the Company, a Subsidiary of the Company, or any other Person in which the .
(b) The Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)shall, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Companylaw, as finally determined by the Supreme Court of Bermuda; indemnify and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoinghold harmless, Parentand, from and after the Effective Time, shall causeParent and the Surviving Corporation shall, to the fullest extent permitted under applicable Lawlaw, the memorandum of association indemnify and bye-laws hold harmless, each director or officer of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time (collectively, the "Directors and Officers") and the Sole Shareholder against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with respect any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, administrative or investigative, arising out of or pertaining to Indemnitees on terms any action or omission in their capacities as officers or directors or shareholders, in each case occurring after December 21, 1999 and scope before the Effective Time and including, without limitation, any action or omission in connection with respect to such coverage, this Agreement and in amount, no less favorable to such individuals than those of such policies in effect on the date of transactions contemplated hereby (but excluding claims by Parent against the Sole Shareholder under this Agreement; ). Without limiting the foregoing, in the event of any such claim, action, suit, proceeding or investigation, (i) the Company or Parent and the Surviving Corporation, as the case may be, shall pay the fees and expenses of counsel selected by any Director and Officer or the Sole Shareholder, which counsel shall be reasonably satisfactory to the Company or to Parent and the Surviving Corporation, as the case may be, promptly after statements therefor are received (unless the Surviving Corporation shall elect to defend such action) and (ii) the Company and Parent and the Surviving Corporation shall cooperate in the defense of any such matter, provided, however, that, if the annual premium for such insurance shall exceed 300% that none of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it Parent or the Surviving Corporation shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company liable for any settlement effected without its written consent (which consent shall use its reasonable best efforts to cause such policy to not be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderunreasonably withheld or delayed).
(c) The provisions of this This Section 6.08 are (i) 7.08 is intended to be for the benefit of, and shall be enforceable by, each Indemniteethe indemnified parties, his or her heirs, their heirs and his or her Representatives personal representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and shall be binding on the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) Corporation and its respective successors and assigns. In the event that Parent, the Company or the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent the Company or the Surviving Company shall assume all of Corporation, as the case may be, honor the indemnification obligations thereof set forth in this Section 6.087.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Retek Inc), Merger Agreement (HNC Software Inc/De)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior All rights to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for to advancement of expensesexpenses relating thereto now existing in favor of any Person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Company’s Organizational Documents and Documents, the Organizational Documents of any Subsidiary of the Company or any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries as in effect on shall survive the date of this Agreement Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.
(b) Without limiting Section 6.07(a) or any rights of any Indemnified Party pursuant to any indemnification agreement set forth in existence as Section 6.07(b) of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, ParentDisclosure Schedule, from and after the Effective Time, in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee), or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, Parent and the Surviving Corporation shall cause(x) indemnify and hold harmless, as and to the fullest extent permitted under applicable by Law, the memorandum of association each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney’s fees and bye-laws expenses in advance of the Surviving Company final disposition of any claim, suit, proceeding or investigation to contain provisions no less favorable each Indemnified Party to the Indemnitees fullest extent permitted by Law upon receipt of any undertaking contemplated by applicable Law with respect to limitation repayment of liabilities advancement), judgments, fines and amounts paid in settlement of directors or in connection with any such threatened or actual Claim, and officers(y) comply with the terms of each such indemnification agreement with respect to such Claim. Any determination of entitlement to indemnification under the preceding sentences shall be made by an independent counsel selected jointly by the Surviving Corporation and such indemnified party. None of Parent or the Surviving Corporation shall settle, advancement compromise or consent to the entry of expenses any judgment in any threatened or actual Claim for which indemnification has been sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Parent and indemnification than are set forth as of the date of this Agreement Surviving Corporation shall cooperate with an Indemnified Party in the Company Organizational Documents, defense of any matter for which provisions such Indemnified Party has validly sought indemnification under such indemnification agreement. Parent’s and the Surviving Corporation’s obligations under this Section 6.07(b) shall not be amended, repealed, or otherwise modified for a period of six (6) years continue in full force and effect after from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodTime.
(bc) For The Company or Parent and the six-year period commencing immediately after Surviving Corporation on behalf of the Company may obtain, at or prior to the Effective Time, the Surviving Company shall maintain in effect prepaid (or “tail”) directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength policies in respect of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees for six years from the Effective Time, covering each person who is covered by such policies on the date of this Agreement on terms and scope with respect to such coverage, coverage and in amount, amounts no less favorable than those of such policies in effect on the date of this Agreement; provided that the maximum aggregate annual premium for such insurance policies for any such year shall not be in excess of the maximum aggregate annual premium contemplated by the immediately following sentence; provided, further, that such tail policy may not be amended, modified or cancelled or revoked by the Company, Parent or the Surviving Corporation. In the event the Company or Parent and the Surviving Corporation does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such individuals coverage and amounts no less favorable than those of such policies in effect on the date of this Agreement; provided, however, that, if that neither Parent nor the Surviving Corporation shall be required to pay an aggregate annual premium for such insurance shall exceed 300policies in excess of 200% of the current annual premium paid by the Company for coverage for its last full fiscal year for such insurance (such 300% threshold, which amount the “Maximum Premium”), which Maximum Premium Company represents and warrants is set forth in Section 6.08(b6.07(c) of the Company Disclosure LetterSchedule); and provided, then further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall provide or cause be obligated to be provided obtain a policy for the applicable individuals with the best greatest coverage as shall then be available at an annual premium for a cost not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six exceeding such amount.
(6d) years, a six-year prepaid “tail” policy on terms From and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to after the Effective Time, including in the Transactions. If event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or Surviving Corporation or entity of such prepaid “tail” policy has been obtained by consolidation or merger or (ii) transfers or conveys all or a substantial portion of its stock, properties or assets to any Person, then, and in each such case, the CompanySurviving Corporation or Parent, it respectively, shall cause proper provision to be deemed made so that the successors or assigns or transferees, as the case may be, shall succeed to satisfy all the obligations to obtain insurance pursuant to set forth in this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder6.07.
(ce) The From and after the Effective Time (but not prior thereto), the provisions of this Section 6.08 are 6.07 (i) are intended to be for the benefit of, and shall will be enforceable by, each IndemniteeIndemnified Party, his or her heirs, heirs and his or her Representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Indemnification and Insurance. (a) From The Purchaser and after Parent agree that until six years from the Effective Timedate the Shares are purchased by Parent or the Purchaser in the Offer (the "Acceptance Date"), the Surviving Purchaser will maintain all rights to indemnification now existing in favor of the directors, officers, employees, fiduciaries and agents of the Company shall, as provided in the Company's Articles of Incorporation and Parent Bylaws or otherwise in effect under any agreement on the date of this Agreement and that the Articles of Incorporation and Bylaws of the Purchaser shall cause not be amended to reduce or limit the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior rights of indemnity afforded to the Effective Time was, a director or officer of the Company, a Subsidiary present and former directors and officers of the Company, or any other Person in which the ability of the Purchaser to indemnify them, nor to hinder, delay or make more difficult the exercise of such rights of indemnity or the ability to indemnify.
(b) The Purchaser will at all times exercise the powers granted to it by its Articles of Incorporation, its Bylaws, and by applicable law to indemnify and hold harmless to the fullest extent possible present or former directors, officers, employees, fiduciaries and agents of the Company against any threatened or any of its Subsidiaries owns any equity interests actual claim, action, suit, proceeding or investigation made against them arising from their service in such capacities (or service in such capacities for another enterprise at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”Company) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise)prior to, and expenses including the Acceptance Date for at least six years from the Acceptance Date. Parent shall assume and perform the obligations of the Purchaser under this Section 6.10; provided, that, any indemnified party shall make a good faith effort (including fees and expenses of legal counsel) in connection with which shall not include any Action (whether civilrequirement to bring any suit, criminalclaim, administrativeaction, or investigative)other proceeding) to cause the Purchaser to perform its obligations under this Section 6.10 before requesting Parent to assume and perform such obligations.
(c) Should any threatened or actual claim action, whenever assertedsuit, based on proceeding or arising out of, in whole investigation be made against any present or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a former director, officer, employee, fiduciary or agent of the Company Company, arising from his services as such, within six years from the Effective Time, the provisions of this Section 6.10 shall continue in effect until the final disposition of all such claims.
(d) Any indemnified party wishing to claim indemnification under this Section, upon learning of any such action, suit, claim, proceeding or investigation, shall notify Parent and the Purchaser within 15 days thereof; provided, however, that any failure so to notify Parent and the Purchaser of any obligation to - 23 - 24 indemnify such Subsidiary indemnified party or taken at of any other obligation imposed by this Section shall not affect such obligations except to the request extent Parent and/or the Purchaser is actually prejudiced thereby. Parent and the Purchaser shall be entitled to assume the defense of any such action, suit, claim, proceeding or investigation with counsel of its choice, unless there is, under applicable standards of professional conduct, a conflict of any significant issue between the positions of Parent and the Purchaser, on the one hand, and the indemnified parties, on the other, in which event the indemnified parties as a group may retain one law firm to represent them with respect to such matter. Neither Parent or the Purchaser, on the one hand, nor the indemnified parties, on the other hand, may settle any such action, suit, claim, proceeding or investigation without the prior written consent of the Company other party, which consent shall not be unreasonably withheld or such Subsidiary delayed.
(including e) In addition to the foregoing, Parent shall cause the Purchaser to honor in connection accordance with serving at their terms any indemnification agreements in existence on the request of date hereof between the Company and any present or such Subsidiary as a former director, officer, employee, agent, trustee, fiduciary or fiduciary agent of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cf) The parties agree that the provisions of this Section 6.08 are 6.10 will not require Parent or the Purchaser to maintain directors' and officers' insurance coverage in favor of the Company's present and former directors and officers.
(ig) intended Notwithstanding anything in this Agreement to be for the benefit ofcontrary, in the event this Agreement is terminated in accordance with its terms before the consummation of the Merger, the Purchaser's and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The Parent's obligations of Parent and the Surviving Company under this Section 6.08 6.10 shall not be terminated or modified in cease upon such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.termination. ARTICLE VII
Appears in 2 contracts
Samples: Merger Agreement (Impact Systems Inc /Ca/), Merger Agreement (Voith Sulzer Acquisition Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from the Effective Time, Parent shall cause the Surviving Company to advance the reasonable and documented expenses (including reasonable and documented fees and expenses of legal counsel) of any Indemnitee under this Section 6.07 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.07) as amendments may incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be required finally determined by applicable Law during a court of competent jurisdiction that such periodPerson is not entitled to be indemnified pursuant to this Section 6.07(a).
(b) For None of Parent or the six-year period commencing immediately after Surviving Company shall settle, compromise or consent to the Effective Timeentry of any judgment in any threatened or actual Action, litigation, claim or proceeding relating to any acts or omissions covered under this Section 6.07 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the Indemnitees shall maintain cooperate in effect directors’ the defense of any Claim and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide access to properties and individuals as reasonably requested and furnish or cause to be provided a policy for the applicable individuals with the best coverage furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as shall then may be available at an annual premium not reasonably requested in excess of the Maximum Premium. connection therewith.
(c) The Company may prior to the Effective Time purchasepurchase or, for an aggregate amount if not so purchased by the Company, Parent shall cause the Surviving Company to exceed put in place effective as of the aggregate Maximum Premium for Effective Time, and Parent or the Company, as applicable, shall fully prepay no later than immediately prior to the Closing, prepaid and non-cancellable “tail” insurance with a claims reporting or discovery period of six (6) years, a six-year prepaid “tail” policy years from the Effective Time on terms and conditions providing at least substantially equivalent benefits and coverage as the current policies of directors’ and officers’ liability, employment practices liability and fiduciary liability insurance maintained by of the Company and its Subsidiaries in effect as of the Effective Time (“Current D&O Insurance”) with respect to matters existing or occurring at or prior to the Effective Time, including the Transactions; provided, however, that Parent may elect in its sole discretion, but shall not be required, to spend (or cause the Surviving Company to spend) more than 325% of the Current D&O Insurance annual premium (the “Cap Amount”) with respect to the annual premium for the six (6) years of coverage under such “tail” policies; provided, further, that if the cost of such insurance exceeds the Cap Amount, and Parent elects not to spend more than the Cap Amount for such purpose, then Parent shall purchase and obtain insurance with the greatest coverage available for a cost equal to such Cap Amount. If such prepaid “tail” policy insurance has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b6.07(c) and the Surviving Company shall use its reasonable best efforts to cause such policy “tail” insurance to be maintained in full force and effecteffect without amendment to any of the policies’ terms and conditions, for its their full term, and to honor all of its the Surviving Company’s obligations thereunder.
(cd) The provisions of this Section 6.08 6.07 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, Indemnitee and his or her Representatives heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 6.07 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 6.07 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 6.07 applies shall be third third-party beneficiaries of this Section 6.086.07).
(de) In the event that Parent, the Surviving Company, Company or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.086.07.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 6.07 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Brookfield Reinsurance Ltd.), Merger Agreement (Argo Group International Holdings, Ltd.)
Indemnification and Insurance. (a) From and after the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify indemnify, defend and hold harmless (including by advancing expenses) each individual current and former director, officer and employee of the Company and any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the Effective Time is, request or at any time prior to for the Effective Time was, a director or officer benefit of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole relating to or in part, (A) the fact that an Indemnitee is connection with any action or was a director or officer of omission relating to their position with the Company or such Subsidiary its Subsidiaries occurring or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, alleged to have occurred before or at any time prior to, the Effective Time (including any Action Claim relating in whole or in part to the Transactions Agreement or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue . Each of any rule (x) the Company Charter Documents and the respective organizational documents of law attaches to such Indemnitee in respect each of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company’s Subsidiaries as currently in effect, as finally determined by the Supreme Court of Bermuda; and (iiy) assume all obligations any indemnification agreements with an Indemnitee listed on Section 5.8(a) of the Company Disclosure Schedule, which shall in each case survive the Transactions and such Subsidiaries continue in full force and effect to the Indemnitees in respect extent permitted by applicable Law and (z) the respective organizational documents of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Company’s Subsidiaries as currently in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingshall not, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time Time, be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the IndemniteesIndemnitees except, except in the case of clauses (x) and (z), as amendments may be required by applicable Law during such period.
(b) For Law. Without limiting the six-year period commencing immediately after foregoing, at the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, cause the certificate of incorporation and by-laws of the Surviving Corporation to include provisions for limitation of liabilities of directors and officers, indemnification, advancement of expenses and exculpation of the Indemnitees no less favorable to the Indemnitees than as set forth in the Company Charter Documents in effect on the date of this Agreement, which provisions shall, for a period of six (6) years from the Effective Time, not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees except as required by applicable Law.
(b) Prior to the Effective Time, the Company shall maintain in effect directors’ and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to obtain and officers’ liability fully pay for “tail” insurance policies with a claims period of at least six years from and after the Effective Time from the Company’s current insurance carrier or from an insurance carrier with the same or better financial strength of credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance covering acts and fiduciary liability insurance (the “D&O Insurance”) for the persons who, as of the date of this Agreement, are covered by the Company’s existing D&O Insurance. Such “tail” insurance policies shall have terms, conditions, retentions and levels of coverage at least as favorable as the Company’s existing D&O Insurance with respect to matters existing or omissions occurring at or prior to the Effective Time (including in connection with this Agreement and the Transactions); provided, however, that the maximum aggregate premium for such insurance policies for any such year shall not be in excess of the Maximum Premium. Parent shall cause the Surviving Corporation to maintain such “tail” insurance policies in full force and effect for their full term. If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect, at no expense to the Indemnitees, for a period of at least six years from and after the Effective Time, the Company’s D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or, if such insurance is unavailable, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase the best available D&O Insurance for such six-year period from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to Indemnitees on terms the Company’s existing D&O Insurance with terms, conditions, retentions and scope with respect to such coverage, and levels of coverage at least as favorable as provided in amount, no less favorable to such individuals than those the Company’s existing policies as of such policies in effect on the date of this Agreement; provided, however, that, if that that neither Parent nor the annual Surviving Corporation shall be required to pay an aggregate premium for such insurance shall exceed 300policies in excess of 250% of the current annual premium paid by the Company for coverage for its last full fiscal year for such insurance (such 300% threshold, the “Maximum Premium”); and provided, which Maximum Premium is set forth in Section 6.08(b) further, that if the premiums of such insurance coverage exceed such amount, Parent or the Company Disclosure Letter, then Parent Surviving Corporation shall provide or cause be obligated to be provided obtain a policy for the applicable individuals with the best greatest coverage as shall then be available at an annual premium for a cost not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If exceeding such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderamount.
(c) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution forfor or limitation of, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Cephalon Inc)
Indemnification and Insurance. (a) From and after the Effective Time, in the Surviving Company shallevent of any threatened or actual claim, and Parent shall cause the Surviving Company toaction, suit, proceeding or investigation, whether civil, criminal or administrative (i) indemnify and hold harmless each a “Claim”), including any such Claim in which any individual who at the Effective Time isis now, or has been at any time prior to the date of the Original Merger Agreement, or who becomes prior to the Effective Time wasTime, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company Knight or any of its Subsidiaries owns or GETCO or any equity interests of its Subsidiaries or who is or was serving at the request of the Company Knight or any of its Subsidiaries or GETCO or any of its Subsidiaries as a director or officer of another Person (each, together with such Person’s heirs, executors and administrators, each an “Indemnitee” and, collectively, the “IndemniteesIndemnified Party”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeis, or investigative)is threatened to be, whenever asserted, made a party based on or arising out of, in whole or in partpart on, or arising in whole or in part out of, or pertaining to (Ai) the fact that an Indemnitee he or she is or was a director or officer of the Company Knight or such Subsidiary any of its Subsidiaries or (B) acts GETCO or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent any of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time its Subsidiaries prior to, to the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations this Agreement or any of the Company transactions contemplated by this Agreement, whether asserted or arising before or after the Effective Time, the parties shall cooperate and such Subsidiaries use their best efforts to the Indemnitees in respect of defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement now existing in favor of expenses) any Indemnified Party as provided in the Company Organizational Documents their respective certificates or articles of incorporation or bylaws (or comparable organizational documents), and the Organizational Documents of such Subsidiaries as any existing indemnification agreements set forth in effect on the date of this Agreement or in any agreement in existence as Section 7.10(a) of the date Knight Disclosure Schedule or Section 7.10(a) of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective TimeGETCO Disclosure Schedule (as applicable), shall causesurvive the Mergers and shall continue in full force and effect in accordance with their terms, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from after the Effective Time in a any manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering individuals for acts or omissions occurring at or prior to the Effective Time with respect or taken at the request of Knight or GETCO, it being understood that nothing in this sentence shall require any amendment to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those the certificate of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% incorporation or bylaws of the current annual premium Company.
(such 300% thresholdb) From and after the Effective Time, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) each of the Company Disclosure Letterand the limited liability company surviving the GETCO Merger shall, then Parent shall to the same and fullest extent a Delaware corporation or Delaware limited liability company is permitted to indemnify its officers and directors by applicable Law, indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses, liabilities or cause to be provided a policy for the applicable individuals judgments or amounts that are paid in settlement of or in connection with the best coverage as shall then be available at an annual premium not any Claim based in excess whole or in part on or arising in whole or in part out of the Maximum Premium. The Company may fact that such person is or was a director or officer of GETCO or any Subsidiary of GETCO, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time purchase(including matters, for an aggregate amount not acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby).
(c) From and after the Effective Time, each of the Company and the corporation surviving the Knight Merger shall, to exceed the aggregate Maximum Premium for six same and fullest extent a Delaware corporation is permitted to indemnify its officers and directors by applicable Law, indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any Claim based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of Knight or any Subsidiary of Knight, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time (6including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby).
(d) years, The Company shall (i) cause GETCO to purchase a six-year prepaid “tailtail policy” policy on terms with respect to acts or omissions occurring prior to the Effective Time that were committed by the covered officers and conditions providing at least substantially equivalent benefits directors in their capacity as such or (ii) either elect to maintain in effect the current policies of directors’ and officers’ liability (and fiduciary) insurance policies currently maintained by Knight for a period of six years from the Effective Time (provided that the Company may substitute therefor policies of at least the same coverage and its Subsidiaries amounts containing terms and conditions that are not less advantageous than such policy) or cause Knight to purchase a six-year prepaid “tail policy” (provided that prior to Closing, Knight may purchase such tail policy), in each case, with respect to matters existing acts or omissions occurring prior to the Effective TimeTime that were committed by the covered officers and directors in their capacity as such; provided, including that in no event shall the Transactions. If Company or Knight (with respect to the Knight policies) or GETCO (with respect to the GETCO policies) be required to expend annually in the aggregate an amount in excess of 250% of the annual premiums currently paid by Knight (which current amount is set forth in Section 7.10(d) of the Knight Disclosure Schedule) for such prepaid insurance (the “Insurance Amounts”); provided, further, that if the annual premiums for such “tail” policy has been obtained by exceed the respective Insurance Amount, then the Company shall cause Knight or GETCO to obtain a “tail” policy with the maximum coverage available for the respective Insurance Amount applied over the term of such policy.
(e) The obligations of the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to the corporation surviving the Knight Merger, and the limited liability company surviving the GETCO Merger under this Section 6.08(b) and 7.10 shall not be terminated or modified by such parties in a manner so as to adversely affect any Indemnified Party or any other person entitled to the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all benefit of its obligations thereunderSection 7.10 without the consent of the affected Indemnified Party.
(cf) The provisions of this Section 6.08 7.10 are (i) intended to be for the benefit of, of and shall be enforceable by, each Indemnitee, his or her heirs, Indemnified Party and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person heirs and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08representatives.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (KCG Holdings, Inc.), Agreement and Plan of Merger (Knight Capital Group, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, each of Parent and the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, in each case to the fullest extent permissible by applicable Law, (i) jointly and severally indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including reasonable fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director director, officer, employee or officer agent of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; ) and (ii) assume (in the case of the Surviving Corporation, in the Merger without any further action) all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum articles of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the IndemniteesIndemnitees in any material respect. In addition, except from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including reasonable fees and expenses of legal counsel) of any Indemnitee under this Section 5.06 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.06) as amendments may incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be required by determined that such Person is not entitled to be indemnified pursuant to this Section 5.06(a) or applicable Law during such periodLaw.
(b) None of Parent or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.06 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those Indemnitees who are currently (and any additional Indemnitees who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable in the aggregate to such individuals than those of such policies policy in effect on the date of this AgreementAgreement (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same aggregate coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy; provided, however, that, that if the aggregate annual premium for such insurance exceeds 300% of the annual premium for such insurance shall exceed 300% as of the current annual premium date hereof (such 300% threshold, the “Maximum PremiumPremium Cap”), which Maximum Premium is set forth in Section 6.08(b) of then the Company Disclosure Letter, then Surviving Corporation or Parent shall provide or cause to be provided a policy for the applicable covering such individuals with the best coverage as shall is then be available at an annual premium a cost up to but not in excess of the Maximum Premiumexceeding such Premium Cap. The Company may (or if requested by Parent, the Company shall), in consultation with Parent, purchase, prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) yearsTime, a six-year prepaid “tailtail policy” policy on terms and conditions providing at least substantially equivalent benefits in the aggregate as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactions, at an aggregate cost up to but not exceeding the aggregate maximum amount payable pursuant to the proviso above for such six year period. If such prepaid “tailtail policy” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.06(c) and the Surviving Company Corporation shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 5.06 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Charter Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.06 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.06 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.06 applies shall be third party beneficiaries of this Section 6.085.06).
(de) In the event that (i) Parent, the Surviving Company, Corporation or any of their respective successors or assigns (iA) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (iiB) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.06.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.06 is not prior to or in substitution for any such claims under such policies.
(g) Parent’s and the Surviving Corporation’s obligations under this Section 5.06 shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that if any Claim (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.06 shall continue in effect until the full and final resolution of such Claim.
Appears in 2 contracts
Samples: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Indemnification and Insurance. (a) From and after For the four years following the Effective Time, the Surviving Company shall, and Parent Jacor shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time ispresent and former employee, or at any time prior to the Effective Time wasagent, a director or officer of the Company, a Subsidiary Premiere and its Subsidiaries ("Indemnified Parties") from and against any and all claims arising out of the Companyor in connection with activities in such capacity, or any other Person in which the Company on behalf of, or any of its Subsidiaries owns any equity interests at the request of the Company (eachof, together with such Person’s heirsPremiere or its Subsidiaries, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) shall advance expenses incurred with respect to all claimsthe foregoing, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)they are incurred, to the fullest extent permitted under applicable Lawlaw; provided provided, however, that no Indemnitee shall be indemnified against if any liability that by virtue of any rule of law attaches claim or claims are asserted or made within such four-year period, all rights to such Indemnitee indemnification in respect of such claims shall continue until the final disposition of any fraud or dishonesty of which and all such Indemnitee is guilty claims.
(b) Jacor shall cause the Surviving Corporation to keep in relation effect provisions substantially similar to the Company, as finally determined by the Supreme Court provisions in Premier's Certificate of Bermuda; Incorporation and (ii) assume all obligations By-laws providing for exculpation of the Company director and such Subsidiaries officer liability and its indemnification of or advancement of expenses to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, Indemnified Parties to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational DocumentsDGCL, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, amended except as amendments may be required by applicable Law during such periodlaw or except to make changes permitted by law that would enhance the Indemnified Parties' right of indemnification or advancement of expenses.
(bc) For the six-year period commencing immediately If, after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, Jacor or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of such consolidationconsolidation or merger, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties property and assets to any Personperson, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall Jacor assume all of the obligations thereof set forth in this Section 6.086.8. The provisions of this Section 6.8 are intended to be for the benefit of, and shall be enforceable by each person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, an officer, director, employee or agent of Premiere or any of its Subsidiaries (and his heirs and representatives).
(d) In connection with any claim for indemnification under the provisions contained or referred to in subsections (a) and (b) of this Section 6.8, Jacor agrees that it shall not, and shall cause Premiere not to, assert as a defense to or a mitigating factor is any such claim that any Indemnified Party is a present or former employee, agent, officer or director of Archon or was otherwise affiliated with Archon.
(e) Nothing in this Agreement is intended toJacor will cause to be maintained for a period of not less than four years from the Effective Time directors and officers liability insurance ("D&O Insurance"), shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of extent commercially available, on terms and conditions no less advantageous to the Indemnified Parties than Premiere's existing D&O Insurance. Notwithstanding the foregoing, in satisfying its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in obligation under this Section 6.08 is 6.8(e), Jacor and Premiere shall not prior be obligated to pay premiums in excess of 125% of the premium paid or to be paid by Premiere in substitution the fiscal year ended December 31, 1996, which amounts are disclosed in Section 6.8(e) of the Disclosure Memorandum, but provided further that Jacor and Premiere shall nevertheless be obligated to provide such coverage as may be obtained for any 125% of the premium to be paid by Premiere for such claims under such policiesinsurance in the fiscal year ended December 31, 1996.
Appears in 2 contracts
Samples: Merger Agreement (Jacor Communications Inc), Merger Agreement (Premiere Radio Networks Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise)Corporation, and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the CompanySurviving Corporation hereby agrees, as finally determined by the Supreme Court of Bermuda; and follows:
(iia) assume all obligations of the Company and such Subsidiaries All rights to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (Time, and rights for to advancement of expensesexpenses relating thereto now existing in favor of any Person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a present or former director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Person”) as provided in the Company Organizational Documents and the Organizational Documents Restated Certificate of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as Incorporation of the date Company, the Amended and Restated Bylaws of this Agreement providing for the Company, the organizational documents of any Subsidiary of the Company or any indemnification agreement, or other written agreement between the Company and an Indemnified Person containing any Indemnitee. Without limiting the foregoingexpress indemnification provisions, Parent, from between such Indemnified Person and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documentsor any of its Subsidiaries shall survive the Merger and, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time years, shall not be amended, repealed or otherwise modified in a any manner that would adversely affect the rights any right thereunder of the Indemnitees, except as amendments may be required by applicable Law during any such periodIndemnified Person.
(b) For the six-year period commencing immediately six years after the Effective Time, Parent and the Surviving Corporation (jointly and severally) shall indemnify and hold harmless all Indemnified Persons to the fullest extent permitted by Delaware Law and any other Applicable Law in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Person is or was a director (including in a capacity as a member of any board committee), officer, employee or agent of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before, on or after the Effective Time, against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Person to the fullest extent permitted by Law upon receipt of any undertaking required by Applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification could be sought by an Indemnified Person hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such Claim or such Indemnified Person otherwise consents in writing to such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with an Indemnified Person in the defense of any matter for which such Indemnified Person could seek indemnification hereunder.
(c) Prior to the Effective Time, the Company shall, or if the Company is unable to, Parent shall maintain in effect cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength coverage of the Company’s current carrier with respect to existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance covering acts policies, in each case for a claims reporting or omissions occurring discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time (including claims with respect to Indemnitees on terms the adoption of this Agreement and scope the consummation of the transactions contemplated hereby) with respect to such coverageterms, conditions, retentions and in amount, limits of liability that are no less favorable than the coverage provided under the Company’s existing policies; provided that the Company shall give Parent a reasonable opportunity to such individuals than those participate in the selection of such policies in effect on “tail” insurance policy and the date of this AgreementCompany shall give good faith consideration to any comments made by Parent with respect thereto; provided, however, that, if and provided that the annual premium per annum payable for such “tail” insurance policy shall not exceed 300% of the current annual premium amount per annum the Company paid in its last full fiscal year (such 300% thresholdmaximum amount, the “Maximum Tail Premium”), which Maximum Premium is set forth in Section 6.08(b) of and if the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy cost for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid such “tail” insurance policy on terms and conditions providing at least substantially equivalent benefits as exceeds the current policies of directors’ and officers’ liability insurance maintained by Maximum Tail Premium, then the Company and its Subsidiaries shall obtain a policy with respect to matters existing or occurring prior to the Effective Time, including greatest coverage available for a cost not exceeding the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Maximum Tail Premium.
(d) In the event that Parent, If Parent or the Surviving Company, or any of their respective successors or assigns Corporation (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidationconsolidation or merger, amalgamation, or merger or (ii) transfers or conveys of all or substantially all of its properties property and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent applicable successor, assign or the Surviving Company transferee shall assume all of the obligations thereof set forth in this Section 6.087.04 (including this Section 7.04(d)).
(e) Nothing in The rights of each Indemnified Person under this Agreement is intended to, Section 7.04 shall be construed to, or shall release, waive, or impair in addition to any rights to directors’ such Person may have under the certificate of incorporation and officers’ insurance claims bylaws of the Company or any of its Subsidiaries, under Delaware Law or any other Applicable Law, under any policy that is or has been in existence agreement of any Indemnified Person with respect to the Company or any of its Subsidiaries for or otherwise. These rights shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Person. The obligations of Parent and the Surviving Corporation under this Section 7.04 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Person without the consent of their respective directorssuch Indemnified Person.
(f) Parent shall pay all reasonable expenses, officersincluding reasonable attorneys’ fees, or that may be incurred by any Indemnified Person in enforcing the indemnity and other employees, it being understood and agreed that the indemnification obligations provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies7.04.
Appears in 2 contracts
Samples: Merger Agreement (Ultratech Inc), Merger Agreement (Veeco Instruments Inc)
Indemnification and Insurance. 10.1 Co-Packer shall indemnify, hold harmless and defend the Company, its employees and agents, from and against any and all liabilities, damages, injuries, claims, suits, expenses (including reasonable attorneys’ fees, court costs and out-of-pocket expenses)
(a) From and after brought by a lawful governmental authority against or concerning the Effective TimeProduct or any portion thereof; or (b) that may in any way arise from breach of warranty, express or implied, or any tort actions or claims, as to the Surviving Company shallquality of the Product, or any portion thereof, its merchantability, its fitness for the purpose for which it was sold, or the failure of the Product to maintain its quality standard for the duration of the Product’s shelf life, except for such liabilities, damages, injuries, claims, suits, expenses (including attorneys’ fees, court costs, and Parent shall cause out-of-pocket expenses) caused by the Surviving Company toacts, (i) indemnify and hold harmless each individual who at the Effective Time isomissions, or at any time prior to the Effective Time was, a director or officer willful misconduct of the Company, the Company’s employees, the Company’s customers, or third parties which are unrelated to and not affiliated with Co-Packer.
10.2 Co-Packer shall also indemnify, hold harmless and defend the Company, its employees and agents, against any losses or damages to the Product and any the Company property, if any, located in Co-Packer’s plant during the term of this Agreement.
10.3 The Company shall, within ten (10) days after receipt of notice of the initiation of any legal proceedings against the Company, relating to the Product, notify Co-Packer thereof and, if required hereunder, Co-Packer shall indemnify, hold harmless and defend the Company in such proceedings.
10.4 Co-Packer shall maintain, throughout the term of this Agreement, at its expense, with a Subsidiary carrier or carriers reasonably satisfactory to the Company:
(a) Commercial/comprehensive general liability insurance (including product liability and vendor’s liability insurance) in a minimum amount of Two Million Dollars ($2,000,000) combined single limit, for bodily injury (including death resulting therefrom) and property damage, and endorsed to provide contractual liability insurance in the amount specified above, specifically covering Co-Packer’s obligations to indemnify the Company pursuant to this Section 10;
(b) Comprehensive automobile liability coverage for all owned, non-owned and hired vehicles with bodily injury limits of not less than One Million Dollars ($1,000,000) per accident; and
(c) Statutory workers’ compensation coverage meeting all state and local requirements, including coverage for employers’ liability with limits of not less than Five Hundred Thousand Dollars ($500,000), including a waiver of subrogation in favor of the Company. A certificate of insurance evidencing such coverages shall be delivered to the Company upon the commencement of the term hereof and annually thereafter during any renewal terms. The certificate shall specify that the Company shall be given at least thirty (30) days prior written notice by the insurer(s) in the event of any material modification, cancellation or termination of the coverage. The insurance certificates required under subsections (a) and (b) above shall designate the Company as an additional insured. The insurance must be primary coverage without right of contribution from any other Person in which Company insurance. Insurance maintained by the Company or any of its Subsidiaries owns any equity interests at is for the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee exclusive benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries will not inure to the Indemnitees in respect benefit of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and byeCo-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodPacker.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Processing and Packaging Agreement, Processing and Packaging Agreement (Smart Balance, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, in the Surviving Company shallevent of any claim, and Parent shall cause action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any of the Surviving Company to, present or former officers or directors (ithe "Managers") indemnify and hold harmless each individual who at of the Effective Time COMPANY or any of the COMPANY's Subsidiaries is, or at any time prior is threatened to the Effective Time wasbe, made a director or officer party by reason of the Company, fact that he or she served as a Subsidiary Manager of the Company, or any other Person in which the Company COMPANY or any of its Subsidiaries owns any equity interests the COMPANY's Subsidiaries, or is or was serving at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement COMPANY or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity COMPANY's Subsidiaries as a director, officer, employee, employee or agent of another corporation (including without limitation, BUYER), partnership, joint venture, trust or other enterprise, whether before or after the Company or such Subsidiary or taken at the request Effective Time, each of the Company or such Subsidiary (including in connection with serving at Surviving Corporation and the request of the Company or such Subsidiary BUYER shall indemnify and hold harmless, as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), and to the fullest extent that COMPANY would have been permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue Delaware law and its certificate of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; incorporation and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as bylaws in effect on the date hereof, each such Manager against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees), judgments, fines and amounts paid in settlement in connection with any such claim, action, suit, proceeding or investigation, and in the event of this Agreement any such claim, action, suit, proceeding or in any agreement in existence as investigation (whether arising before or after the Effective Time), and (i) if the BUYER or the Surviving Corporation (after the Effective Time) have not promptly assumed the defense of such matter, the date of this Agreement providing for indemnification between Managers may retain counsel satisfactory to them, and the Company Surviving Corporation and any Indemnitee. Without limiting the foregoing, Parent, from and BUYER after the Effective Time, shall causeadvance all reasonable fees and expenses (including attorneys' fees) for the Managers promptly, as Manager incurs the same and as statements therefor are received, and (ii) the Surviving Corporation and the BUYER after the Effective Time, will use their respective best efforts to assist in the vigorous defense of any such matter; provided that neither the Surviving Corporation nor the BUYER shall be liable for any settlement effected without its prior written consent; provided further that the Surviving Corporation and the BUYER shall have no obligation under the foregoing provisions of this Section 5.6(a) to any Manager when and if (i) a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Manager in the manner contemplated hereby is prohibited by applicable law or (ii) the loss, claim, damage, liability, cost, expense, judgment or fine is based on or arises from a final non-appealable order of a court of competent jurisdiction or in connection with a settlement, consent, decree, order or injunction with any governmental agency or authority finding that the Manager violated Section 16(b) of the Exchange Act, Section 10(b) of the Exchange Act or Rule 10b-5 promulgated thereunder or any federal or state securities law relating to or governing "insider" trading of securities. At the Effective Time, each Manager shall confirm in writing that upon the finality of any such determination that the Surviving Corporation or the BUYER is not liable for any such indemnification claims, the Manager will immediately reimburse the BUYER and the Surviving Corporation in full for any fees, expenses and costs incurred by the BUYER or the Surviving Corporation in connection with the defense of such claims. Any Manager wishing to claim indemnification under this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall immediately notify the BUYER, thereof (provided that the failure to give such notice shall not affect any obligations hereunder, except to the fullest extent permitted under applicable Law, that the memorandum of association indemnifying party is actually and bye-laws materially prejudiced thereby). The BUYER further covenants not to amend or repeal any provisions of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation Certificate of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as Incorporation or Bylaws of the date of this Agreement BUYER or Surviving Corporation in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a any manner that would adversely affect the rights thereunder of the Indemniteesindemnification or exculpatory provisions contained herein, except as amendments may be to the extent otherwise required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum PremiumDelaware law. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 5.6 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, indemnified party and his or her Representatives heirs and (ii) in addition torepresentatives, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under shall survive the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and Closing for a period expiring six years from the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Effective Time.
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Amendment to Agreement and Plan of Merger (Video Update Inc), Agreement and Plan of Merger (Moovies Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Corporation to indemnify, defend and hold harmless to the fullest extent permitted under applicable law each person who is immediately prior to the Effective Time, or has been at any time prior to the Effective Time, an officer or director of the Company to(or any Subsidiary or division thereof) and each person who immediately prior to the effective time is serving or prior to the Effective Time has served at the request of the Company as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) indemnify Parent shall cause the Surviving Corporation to pay, as incurred, the fees and hold harmless expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to Parent, in advance of the final disposition of any such Action to the fullest extent permitted by applicable law, and, if required, upon receipt of any undertaking required by applicable law, and (ii) Parent will, and will cause the Surviving Corporation to, cooperate in the defense of any such matter; provided, however, neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.13(a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each individual who at similarly situated group.
(b) The parties agree that the rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation, bylaws and any indemnification agreement of the Company and its Subsidiaries with respect to matters occurring through the Effective Time isTime, shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification and advancement of expenses in respect of any Action pending or asserted or claim made within such period shall continue until the disposition of such Action or resolution of such claim.
(c) For a period of six years after the Effective Time, the Surviving Corporation shall maintain officers' and directors' liability insurance covering the Indemnified Parties who are or at any time prior to the Effective Time was, a director or officer of were covered by the Company, a Subsidiary of 's existing officers' and directors' liability insurance ("D&O Insurance") policies on terms substantially no less advantageous to the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with Indemnified Parties than such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) existing insurance with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement acts or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeomissions, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) alleged acts or omissions by an Indemnitee in the Indemnitee’s capacity as a directoromissions, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement whether claims, actions or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingother proceedings relating thereto are commenced, Parent, from and asserted or claimed before or after the Effective Time); provided that, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain not be required to pay annual premiums in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength excess of 250% of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or 2003 annual premium paid by the Company prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those date hereof (the amount of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is premiums are set forth in Section 6.08(b) of the Company Disclosure Letter) (the "Maximum Premium"), then but in such case shall purchase as much coverage as reasonably practicable for such amount. Parent shall provide or have the right to cause coverage to be provided a policy for extended under the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, Company's D&O Insurance by obtaining a six-year prepaid “"tail” " policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by no less advantageous than the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term's existing D&O Insurance, and to honor all of its obligations thereunder.
(c) The such "tail" policy shall satisfy the provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.085.13(c).
(d) The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, under the DGCL, or otherwise. The provisions of this Section 5.13 shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
(e) In the event that Parent, the Surviving Company, Parent or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, Parent shall cause proper provision shall to be made so that the successors and assigns of Parent or Parent, as the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.085.13.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Ocean Energy Inc /Tx/), Merger Agreement (Devon Energy Corp/De)
Indemnification and Insurance. (a) From For not less than six (6) years from and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Corporation, to the extent permitted by applicable Laws and the certificate of incorporation and bylaws of the Company in effect as of immediately prior to the Effective Time, to, : (i) indemnify and hold harmless each individual any person who at the Effective Time iswas or is a party or is threatened to be made a party to any threatened, pending or at any time prior to the Effective Time wascompleted action, a director suit or officer of the Companyproceeding, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole investigative (other than an action by or in partthe right of the Company) (each, (Aa “D&O Claim”) by reason of the fact that an Indemnitee he or she is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as each, a director, officer, employee“Covered Person”), or agent while a director or officer of the Company is or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with was serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, employee or fiduciary agent of another Person corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan)Subsidiary of the Company), in each case under clause against expenses (A) or (Bincluding attorneys’ fees), atjudgments, fines and amounts paid in settlement actually and reasonably incurred by him or at any time prior toher in connection with such action, the Effective Time (including any Action relating in whole suit or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermudaproceeding; and (ii) assume all obligations pay, on behalf of such Covered Person, expenses (including attorneys’ fees) incurred by such Covered Person in defending any D&O Claim for which such Covered Person may be entitled to indemnification under this Section 6.9, in advance of the final disposition of such D&O Claim, upon receipt of an undertaking by or on behalf of such Covered Person to repay such amounts if it shall ultimately be determined that he or she is not entitled to be indemnified by the Surviving Corporation as authorized in this Section 6.9. In the event of any such D&O Claim, Parent and the Surviving Corporation shall cooperate with the Covered Person in the defense of any such D&O Claim. All rights to indemnification and advancement conferred hereunder shall continue as to a Person who has ceased to be a director, officer or employee of the Company or any of its Subsidiaries after the date hereof and such Subsidiaries shall inure to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents benefit of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company Person’s heirs, successors, executors and any Indemnitee. Without limiting the foregoing, Parent, personal and legal Representatives.
(b) For not less than six (6) years from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company to Corporation shall contain provisions no less favorable to the Indemnitees with respect to limitation exculpation, limitations on liability of liabilities Covered Persons, indemnification of directors and officers, advancement of expenses and indemnification to Covered Persons than are set forth as of the date hereof in the Certificate of Incorporation and the Bylaws. Notwithstanding anything herein to the contrary, if any D&O Claim (whether arising before, at or after the Effective Time) is made against such Persons with respect to matters subject to indemnification hereunder on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 6.9(a) shall continue in effect until the final disposition of such D&O Claim. Following the Effective Time, the indemnification Contracts in existence on the date of this Agreement in set forth on Section 6.9(a) of the Company Organizational DocumentsDisclosure Letter with any of the Covered Persons shall be assumed by the Surviving Corporation, without any further action, and shall continue in full force and effect in accordance with their terms.
(c) The Company will cause to be put in place, and Parent shall fully prepay immediately prior to the Effective Time a six (6)-year prepaid “tail” insurance policy (which provisions policy by its express terms shall not be amended, repealed, survive the Merger) of at least the same coverage and amounts and containing terms and conditions that are no less favorable to the covered individuals as the Company’s and its Subsidiaries’ existing directors’ and officers’ insurance policy or otherwise modified for policies with a claims period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemniteesfor D&O Claims arising from facts, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Timeacts, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts events or omissions occurring at that occurred on or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of Time. If the Company Disclosure Letter, then Parent shall provide or cause fails to be provided a obtain such tail policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including Parent or the TransactionsSurviving Corporation shall obtain such a tail policy. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) Parent and the Surviving Company Corporation shall use its reasonable best efforts to cause any such policy (whether obtained by Parent, the Company or the Surviving Corporation) to be maintained in full force and effect, for its full term, and Parent shall cause the Surviving Corporation to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for . Notwithstanding the benefit offoregoing, and in no event shall be enforceable byParent, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company Corporation be required to pay annual premiums for insurance under this Section 6.08 shall not be terminated or modified 6.9(c) in excess of 300% of the amount of the annual premiums paid by the Company for fiscal year 2022 for such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 appliespurpose, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed understood that the Indemnitees Parent shall nevertheless be obligated to whom this Section 6.08 applies shall provide as much coverage as may be third party beneficiaries of this Section 6.08)obtained for such 300% amount.
(d) In the event that Parent, Parent or the Surviving Company, or any of their respective successors or assigns Corporation (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys sells all or substantially all of its properties and assets to any Person, then, and in each such case, then proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the successors and assigns of Parent or the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.086.9.
(e) Nothing The obligations under this Section 6.9 shall not be terminated or modified in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy manner that is or has been in existence with respect adverse to the Company or any of its Subsidiaries for any of Covered Persons (and their respective directors, officers, or other employeessuccessors and assigns), it being understood and expressly agreed that each Covered Person (including their respective successors and assigns) shall be a third-party beneficiary of this Section 6.9. In the indemnification event of any breach by the Surviving Corporation or Parent of this Section 6.9, the Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by Covered Persons in enforcing the indemnity and other obligations provided for in this Section 6.08 is not prior to or in substitution for any 6.9 as such claims under fees are incurred, upon the written request of such policiesCovered Person.
Appears in 2 contracts
Samples: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Indemnification and Insurance. (a) From and after the Effective Time, in the Surviving Company shallevent of any claim, and Parent shall cause action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any of the Surviving Company to, present or former officers or directors (ithe "Managers") indemnify and hold harmless each individual who at of the Effective Time COMPANY or any of the COMPANY's Subsidiaries is, or at any time prior is threatened to the Effective Time wasbe, made a director or officer party by reason of the Company, fact that he or she served as a Subsidiary Manager of the Company, or any other Person in which the Company COMPANY or any of its Subsidiaries owns any equity interests the COMPANY's Subsidiaries, or is or was serving at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement COMPANY or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity COMPANY's Subsidiaries as a director, officer, employee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether before or after the Company or such Subsidiary or taken at the request Effective Time, each of the Company or such Subsidiary (including in connection with serving at Surviving Corporation and the request of the Company or such Subsidiary BUYER shall indemnify and hold harmless, as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), and to the fullest extent that COMPANY would have been permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue Delaware law and its certificate of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; incorporation and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as bylaws in effect on the date hereof, each such Manager against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees), judgments, fines and amounts paid in settlement in connection with any such claim, action, suit, proceeding or investigation, and in the event of this Agreement any such claim, action, suit, proceeding or in any agreement in existence as investigation (whether arising before or after the Effective Time), and (i) if the BUYER or the Surviving Corporation (after the Effective Time) have not promptly assumed the defense of such matter, the date of this Agreement providing for indemnification between Managers may retain counsel satisfactory to them, and the Company Surviving Corporation and any Indemnitee. Without limiting the foregoing, Parent, from and BUYER after the Effective Time, shall causeadvance all reasonable fees and expenses (including attorneys' fees) for the Managers promptly, as Manager incurs the same and as statements therefor are received, and (ii) the Surviving Corporation and the BUYER after the Effective Time, will use their respective best efforts to assist in the vigorous defense of any such matter; provided that neither the Surviving Corporation nor the BUYER shall be liable for any settlement effected without its prior written consent; provided further that the Surviving Corporation and the BUYER shall have no obligation under the foregoing provisions of this Section 5.6(a) to any Manager when and if (i) a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Manager in the manner contemplated hereby is prohibited by applicable law or (ii) the loss, claim, damage, liability, cost, expense, judgment or fine is based on or arises from a final non-appealable order of a court of competent jurisdiction or in connection with a settlement, consent, decree, order or injunction with any governmental agency or authority finding that the Manager violated Section 16(b) of the Exchange Act, Section 10(b) of the Exchange Act or Rule 10b-5 promulgated thereunder or any federal or state securities law relating to or governing "insider" trading of securities. At the Effective Time, each Manager shall confirm in writing that upon the finality of any such determination that the Surviving Corporation or the BUYER is not liable for any such indemnification claims, the Manager will immediately reimburse the BUYER and the Surviving Corporation in full for any fees, expenses and costs incurred by the BUYER or the Surviving Corporation in connection with the defense of such claims. Any Manager wishing to claim indemnification under this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall immediately notify the BUYER, thereof (provided that the failure to give such notice shall not affect any obligations hereunder, except to the fullest extent permitted under applicable Law, that the memorandum of association indemnifying party is actually and bye-laws materially prejudiced thereby). The BUYER further covenants not to amend or repeal any provisions of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation Certificate of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as Incorporation or Bylaws of the date of this Agreement BUYER or Surviving Corporation in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a any manner that would adversely affect the rights thereunder of the Indemniteesindemnification or exculpatory provisions contained herein, except as amendments may be to the extent otherwise required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum PremiumDelaware law. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 5.6 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, indemnified party and his or her Representatives heirs and (ii) in addition torepresentatives, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under shall survive the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and Closing for a period expiring six years from the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Effective Time.
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Moovies Inc), Merger Agreement (Video Update Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, in each case to the fullest extent permitted under applicable Law, (i) indemnify and hold harmless harmless, and advance expenses to, each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, director or agent officer of the Company or such Subsidiary or, in the case of directors or officers of the Company or of a Subsidiary of the Company, taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; provision) and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.07 (each, a “Claim”) for which indemnification could be sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies policy in effect on the date of this Agreement; providedAgreement (or Parent may substitute therefor policies, howeverissued by reputable insurers, thatof at least the same coverage with respect to matters existing or occurring prior to the Effective Time, if including a “tail” policy), so long as the Surviving Corporation is not required to pay an annual premium for such insurance shall exceed in excess of 300% of the current last annual premium paid by the Company for such insurance before the date of this Agreement (such 300% thresholdamount, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may shall have the right prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, purchase a six-year prepaid “tailtail policy” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactions, so long as the effective annual premium under such policy does not exceed the Maximum Premium. If such prepaid “tailtail policy” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.07(c) and the Surviving Company Corporation shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 5.07 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Charter Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.07 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.07 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.07 applies shall be third party beneficiaries of this Section 6.085.07).
(de) In the event that (i) Parent, the Surviving Company, Corporation or any of their respective successors or assigns (iA) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (iiB) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.07.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.07 is not prior to or in substitution for any such claims under such policies.
(g) Parent’s and the Surviving Corporation’s obligations under this Section 5.07 shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that if any Claim (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.07 shall continue in effect until the full and final resolution of such Claim.
Appears in 2 contracts
Samples: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, each of Parent and the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, in each case to the fullest extent permissible by applicable Law, (i) jointly and severally indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever or where ever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director director, officer, employee or officer agent of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; ) and (ii) assume (in the case of the Surviving Corporation, in the Merger without any further action) all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, officers and indemnification and advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of any of the Indemnitees. In addition, except from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.06 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.06) as amendments may be required by incurred to the fullest extent permitted under applicable Law during such periodLaw.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those Indemnitees who are currently (and any additional Indemnitees who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals Indemnitees than those of such policies policy in effect on the date of this AgreementAgreement (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy); provided, however, that, if that the maximum aggregate annual premium for such insurance that Parent shall be required to expend shall not exceed 300% of the annual directors’ and officers’ insurance premium for the Company’s then current annual premium fiscal year (such 300% threshold, the “Maximum PremiumD&O Cap”), which Maximum Premium ; and if such amount is set forth not sufficient to purchase insurance in Section 6.08(b) of the Company Disclosure Lettersuch maximum amount, then Parent shall provide or cause to be provided a policy for the applicable individuals purchase such amount of insurance with the best coverage reasonably available as shall then can be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, purchased for an aggregate amount not that is equal to exceed the aggregate Maximum Premium D&O Cap. Parent shall cause the Surviving Corporation to comply with its obligations under such policies for the full term of at least six (6) years. The Company shall have the right, prior to the Effective Time, to purchase a six-year prepaid “tailtail policy” policy on terms and conditions providing at least substantially equivalent benefits as the current applicable policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactions, subject to the D&O Cap. If such prepaid “tailtail policy” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.06(b) and the Surviving Company Corporation shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor perform all of its obligations thereunder.
(c) In the event that (i) Parent, the Surviving Corporation or any of their respective successors or assigns (A) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (B) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 5.06.
(d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.06 is not prior to or in substitution for any such claims under such policies.
(e) Parent’s and the Surviving Corporation’s obligations under this Section 5.06 shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that if any claim (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.06 shall continue in effect until the full and final resolution of such claim.
(f) The provisions of this Section 6.08 5.06 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Charter Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.06 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.06 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.06 applies and each Indemnitee’s heirs and representatives shall be third third-party beneficiaries of this Section 6.085.06).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Altra Industrial Motion Corp.), Merger Agreement (Regal Rexnord Corp)
Indemnification and Insurance. (a) From and after the Merger Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, Moon (i) indemnify shall indemnify, defend and hold harmless each individual Person who at the Effective Time is, or at any time prior to the Effective Time washas been, a director or officer of the CompanyComet or a director, a Subsidiary officer, member, trustee or fiduciary of the Company, or any other Person in which the Company or any of its Subsidiaries owns and each Person who is, or at any equity interests time prior to the Merger Effective Time, served at the request or for the benefit of the Company Comet as a director, officer, member, trustee or fiduciary of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans (each, together with such Person’s heirs, executors and administratorsindividually, an “IndemniteeIndemnified Party” and, collectively, the “IndemniteesIndemnified Parties”) with respect to against all claimscost, liabilitiesexpense, losses, damagesliability and loss (including reasonable attorneys’ fees, judgments, fines, penalties, costs (including ERISA excise Taxes or penalties and amounts paid or to be paid in settlement settlement) incurred or compromise), and expenses (including fees and expenses of legal counsel) suffered by such Person in connection with any Action (whether civilProceeding, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) by reason of the fact that an Indemnitee such Indemnified Party is or was a director or officer of the Company Comet or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employeemember, trustee or agent fiduciary of the Company any of its Subsidiaries or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employeemember, agent, trustee, trustee or fiduciary of another Person (corporation or of a partnership, joint venture, trust or other enterprise, including any service with respect to employee benefit plan))plans at the request or for the benefit of Comet, in each case under to the same extent as provided by Comet’s Organizational Documents and applicable Law as of the date hereof, and (ii) without limitation to clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemniteei), to the fullest extent permitted under by applicable Law, shall also advance expenses as incurred to the same such extent; provided that no Indemnitee shall be indemnified against any liability that the Person to whom fees and expenses are advanced shall, if required by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association provide an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. In addition, Moon, Comet and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officersComet Newco Sub agree that, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six years after the Closing, neither Comet nor any of its successors (6including, for the avoidance of doubt, Comet Newco Sub, as the acquiring and surviving corporation in the Merger) years from the Effective Time shall, and Moon shall cause Comet and its successors not to, amend, repeal or modify any provision in its Organizational Documents in a manner that would adversely affect the rights thereunder and/or exculpation or indemnification of present or former supervisory directors, members of the Indemniteesmanagement board, except officers, employees or agents of Comet and its Subsidiaries, or of persons who are or were serving at the request of Comet or its Subsidiaries as amendments may a supervisory director, member of the management board, officer, director, employee, trustee or agent of another company, a partnership, joint venture, trust or other enterprise or entity of Comet, it being the intent of the Parties that the supervisory directors, members of the management board, officers, employees or agents of Comet and its Subsidiaries, or of persons who are or were serving at the request of Comet or its Subsidiaries as a supervisory director, member of the management board, officer, director, employee, trustee or agent of another company, a partnership, joint venture, trust or other enterprise or entity prior to the Closing shall continue thereafter to be required by entitled to such rights of exculpation and indemnification to the fullest extent permitted under applicable Law during such periodLaws until at least the sixth anniversary of the Closing Date.
(b) For At or prior to the six-year period commencing immediately after the Merger Effective Time, any of the Surviving Company shall maintain in effect Moon Parties or Comet Parties may purchase a “tail” directors’ and officers’ liability insurance from an insurance carrier with policy covering the same Indemnified Parties who are, or better financial strength of at any time prior to the CompanyMerger Effective Time were, covered by Comet’s current carrier with respect to existing directors’ and officers’ liability insurance covering acts or omissions occurring policies for at or prior to least six years after the Merger Effective Time with respect to Indemnitees and on terms and scope with respect to such coverage, and in amount, conditions no less favorable advantageous to the Indemnified Parties (including as to coverage and amounts) than such individuals than those of such policies in effect on existing insurance, with a substantially comparable insurer to the date of this Agreement; providedexisting insurer, however, provided that, if purchased by Comet, the annual premium for such insurance thereof shall not exceed 300% of the current greater of the last annual premium paid by Comet prior to the date of this Agreement (such 300% threshold, the “Maximum PremiumPremium Cap”), which Maximum Premium . If such a policy is set forth in Section 6.08(b) of the Company Disclosure Letternot purchased by either Moon or Comet, then Parent for a period of six years after the Merger Effective Time, Moon shall provide or cause to be maintained the current officers’ and directors’ liability insurance covering the Indemnified Parties who are, or at any time prior to the Merger Effective Time were, covered by Comet’s existing officers’ and directors’ liability insurance policies (provided that Moon may substitute therefor policies on terms and conditions which are no less advantageous to the Indemnified Parties (including as to coverage and amounts) than such existing insurance with a policy substantially comparable insurer) with respect to claims arising from facts or events, or actions or omissions, which occurred or are alleged to have occurred at or before the Merger Effective Time, provided that Moon shall not be required to pay annual premiums in excess of the Premium Cap, and if premiums for such insurance would at any time exceed the applicable individuals with Premium Cap, then Moon shall cause to be maintained policies of insurance coverage which provide the best maximum coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior equal to the Effective Time purchasePremium Cap. In either case, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current Moon will maintain such policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, effect and to honor all of its the obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, Moon or any of their its respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Moon shall assume all of the obligations thereof set forth in this Section 6.087.18.
(ed) Nothing in The rights of any Indemnified Party under this Agreement is intended to, Section 7.18 shall be construed toin addition to any other rights such Indemnified Party may have under the Organizational Documents of Comet or any of its Subsidiaries, indemnification or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence employment agreements with respect to the Company Comet or any of its Subsidiaries or under any applicable Law. The provisions of this Section 7.18 shall survive the consummation of the transactions contemplated hereby for any a period of six years and are expressly intended to benefit, and be enforceable by, each of the Indemnified Parties and their respective directorsheirs and representatives; provided, officershowever, that in the event that any claim or other employees, it being understood and agreed that the claims for indemnification provided for set forth in this Section 6.08 is not prior 7.18 are asserted or made within such six-year period, all rights to or indemnification in substitution for respect to any such claim or claims under will continue until the disposition of all such policiesclaims. In the event of any breach by Moon of this Section 7.18, Moon shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by the Indemnified Parties in enforcing the indemnity and other obligations provided in this Section 7.18 upon the written request of such Indemnified Party.
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall will cause the Surviving Corporation to fulfill and honor in all respects the obligations of the Company to, pursuant to (i) indemnify each indemnification agreement currently in effect between the Company and hold harmless each individual person who at the Effective Time isis or was a director, officer, employee, agent or at any time prior to the Effective Time was, a director or officer fiduciary of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns subsidiaries at or prior to the Effective Time and (ii) any equity interests at indemnification provision under the request Company's Articles of Organization or By-Laws as each is in effect on the Company date hereof (each, together with such Person’s heirs, executors the persons to be indemnified pursuant to the agreements or provisions referred to in clauses (i) and administrators, an “Indemnitee” and(ii) of this Section 5.7(a) shall be referred to as, collectively, the “Indemnitees”) "Indemnified Parties"). The Articles of Organization and By-Laws of the Surviving Corporation shall contain the provisions with respect to all claimsindemnification and exculpation from liability set forth in the Company's Articles of Organization and By-Laws on the date of this
(b) Without limiting the provisions or effect of Section 5.7(a), liabilitiesafter the Effective Time Parent will, lossesto the fullest extent permitted under applicable law, damagesindemnify and hold harmless each Indemnified Party against and from any costs or expenses (including reasonable attorneys' fees), judgments, fines, penaltieslosses, costs (including claims, damages, liabilities and amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or to the extent arising out of, of or pertaining to any action or omission or alleged action or omission in whole his or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s her capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any subsidiaries (regardless of their respective directors, officerswhether such action or omission, or other employeesalleged action or omission, occurred prior to, on or after the Effective Time) or arising out of or pertaining to this Agreement or the transactions contemplated by this Agreement (collectively, "Losses") for a period of six years after the Effective Time; provided, however, that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Party delivers to Parent a written notice asserting a claim for indemnification under this Section 5.7(b), then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. If any such claim, action, suit, proceeding or investigation shall have been brought against an Indemnified Party and if Parent shall have acknowledged in writing to the Indemnified Party that Parent will indemnify the Indemnified Party pursuant to this Section 5.7(b) for all Losses arising out of such claim, action, suit, proceeding or investigation, then Parent shall be entitled to participate therein, and to assume the defense thereof, and to settle and compromise any such claim, action, suit, proceeding or investigation (so long as the Indemnified Party is completely and unconditionally released and has no continuing obligations or prohibitions imposed on him or her by contract, by judicial or administrative order or decree or otherwise). If Parent does not acknowledge its obligation to indemnify for all such Losses or does not elect to assume the defense, settlement or compromise thereof, in each case pursuant to the preceding sentence, then Parent shall nevertheless have the right to participate in the defense of any such claim, action, suit, proceeding or investigation and to consent in writing (not to be unreasonably withheld or delayed) to any settlement or compromise thereof, but such defense and any settlement or compromise thereof shall at all times be under the direction of the Indemnified Person. In the event of any such claim, action, suit, proceeding or investigation (i) any counsel retained by the Indemnified Parties must be reasonably satisfactory to Parent, and (ii) after the Effective Time, Parent will pay the reasonable fees and expenses of one such counsel for all Indemnified Parties (it being understood and agreed that more than one such counsel may be retained and paid for by Parent if counsel for one of the indemnification Indemnified Parties reasonably concludes under applicable standards of professional conduct that a conflict of interest may exist), promptly after statements therefor are received.
(c) For six years after the Effective Time, Parent shall maintain in effect the current level and scope of the Company's directors' and officers' liability insurance covering those persons (currently or formerly connected with the Company) who are currently covered by the Company's directors' and officers' liability insurance policy; provided, however, that in no event shall Parent be
(d) Parent and the Surviving Corporation jointly and severally agree to pay all expenses, including attorneys' fees, that may be incurred by the Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 6.08 5.7.
(e) This Section 5.7 shall survive the consummation of the Merger at the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Corporation and the Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Corporation. This Section 5.7 may not be amended, altered or repealed without the prior to or in substitution for any such claims under such policieswritten consent of the affected Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Irvine Horace H Ii), Merger Agreement (Hadco Corp)
Indemnification and Insurance. (a) From and after the Effective TimeTime through the sixth anniversary of the date on which the Effective Time occurs, the Surviving Company shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification (and advancement of expenses) and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, whether asserted or claimed prior to, at or after the Effective Time, as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as currently in effect on effect, and Parent shall cause the date Surviving Corporation and its Subsidiaries to maintain such rights to indemnification (and advancement of this Agreement or expenses) and exculpation provided in any agreement in existence as of the date of this Agreement providing for indemnification between the Company Charter Documents and any Indemniteethe organizational documents of such Subsidiaries as currently in effect. Without limiting the foregoing, Parent, from and after the Effective Time until six years from the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amendedamended (whether by merger, repealedconsolidation or otherwise), repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from the Effective Time until six years from the Effective Time, Parent shall cause the Surviving Corporation to pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.9 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.9) as amendments incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be determined that such person is not entitled to be indemnified pursuant to this Section 5.9(a). Notwithstanding anything to the contrary contained in this Section 5.9(a) or elsewhere in this Agreement, neither Parent nor the Surviving Corporation shall (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation of a covered person for which indemnification may be required sought under this Section 5.9(a) unless such settlement, compromise, consent or termination includes an unconditional release of such covered person from all liability arising out of such claim, action, suit, proceeding or investigation, and does not include an admission of fault or wrongdoing by applicable Law during any Indemnitee or such periodIndemnitee otherwise consents in writing to such settlement, compromise, consent or termination.
(b) The Surviving Corporation shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.9 (each, a “Claim”) with counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnitee; provided, however, that neither Parent nor the Surviving Corporation (i) shall be liable for any settlement effected without Parent’s written consent or (ii) shall be liable for the fees and expenses of more than one counsel in addition to any local counsel. Each of Parent, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, Parent shall cause the Surviving Company shall Corporation to maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy (provided that Parent may substitute therefor policies, issued by reputable and financially sound insurers, of at least the same coverage and amounts containing terms and scope conditions which are no less favorable in any material respect) with respect to such coverage, and in amount, no less favorable claims arising from or related to such individuals than those of such policies in effect on facts or events which occurred at or prior to the date of this AgreementEffective Time; provided, however, that, if the that Parent shall not be obligated to make aggregate annual premium payments for such insurance shall to the extent such premiums exceed 300% of the current aggregate annual premium (such 300% threshold, the “Maximum Premium”); provided, which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letterfurther, then Parent shall provide if such insurance coverage cannot be obtained at all, or cause to can only be provided a policy for the applicable individuals with the best coverage as shall then be available obtained at an aggregate annual premium not in excess of the Maximum Premium. The , Parent shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an aggregate annual premium not to exceed the Maximum Premium; provided, further, if the Company may in its sole discretion elects, by giving written notice to Parent at least two (2) business days prior to the Effective Time Time, then, in lieu of the foregoing insurance, effective as of the Effective Time, the Company shall purchase, for an aggregate amount not to exceed six times the aggregate Maximum Premium for six (6) yearsPremium, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing wrongful acts and/or omissions committed or occurring allegedly committed at or prior to the Effective Time, including covering without limitation the Transactionstransactions contemplated hereby. If such prepaid “tailtail policy” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.9(c) and the Surviving Company Corporation and Parent shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its their obligations thereunder.
(cd) The provisions of this Section 6.08 5.9 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirssuccessors, his or her heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification 5.9 applies (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.9 applies shall be third party beneficiaries of this Section 6.085.9).
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.9.
(ef) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.9 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Dell Inc), Merger Agreement (Quest Software Inc)
Indemnification and Insurance. (a) From and after In the Effective Timeevent of any threatened or actual claim, the Surviving Company shallaction, and Parent shall cause the Surviving Company tosuit, (i) indemnify and hold harmless each individual proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who at the Effective Time isis now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time wasDate, a director director, trustee, officer, employee, fiduciary or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at subsidiaries (the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”"Indemnified Parties") with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeis, or investigative)is threatened to be, whenever asserted, made a party based on or arising out of, in whole or in partpart on, or arising in whole or in part out of, or pertaining to (Ai) the fact that an Indemnitee he, she or it is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, trustee, officer, employee, employee or agent of the Company or such Subsidiary any of its subsidiaries, or taken at the request of the Company is or such Subsidiary (including in connection with was serving at the request of the Company or such Subsidiary any of its subsidiaries as a director, trustee, officer, employee, agent, trustee, employee or fiduciary agent of another Person corporation, partnership, joint venture, trust or other enterprise; or (ii) this Merger Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Date, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Date Purchaser shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including any employee benefit plan)attorneys' fees and expenses), judgments, fines and amounts paid in each case under clause settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (A) whether asserted or (Barising before or after the Effective Date), at(i) the Company, or at any time prior to, and the Purchaser after the Effective Time (including Date, shall promptly pay expenses in advance of the final disposition of any Action relating in whole claim, suit, proceeding or in part investigation to each Indemnified Party to the Transactions full extent permitted by law; (ii) the Indemnified Parties may retain counsel satisfactory to them, and the Company, and Purchaser after the Effective Date, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty days after statements therefor are received; and (iii) the Company and Purchaser will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, that neither the Company nor Purchaser shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further that the Purchaser shall have no obligation hereunder to any Indemnified Party 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 Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 10.3, upon learning of any such claim, action, suit, proceeding or relating investigation, shall notify the Company and, after the Effective Date, Purchaser, thereof, provided that the failure to so notify shall not affect the obligations of the Company or Purchaser except to the enforcement extent such failure to notify materially prejudices such party.
(b) Purchaser agrees that all rights to indemnification existing in favor, and all limitations on the personal liability, of this provision the Indemnified Parties provided for in the Company's Certificate or any other indemnification the Company's Bylaws or advancement right the charter or bylaws or similar organizational documents of any Indemnitee), of its subsidiaries as in effect as of the date hereof with respect to matters occurring prior to the fullest extent permitted under applicable LawEffective Date shall survive the Merger and shall continue in full force and effect for a period of not less than three years from the Effective Date; provided provided, however, that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches all rights to such Indemnitee indemnification in respect of any fraud claim (a "Claim") asserted or dishonesty made within such period shall continue until the disposition of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at Claim. At or prior to the Effective Time (Date, Purchaser shall purchase directors' and rights officers' liability insurance coverage for advancement of expenses) as provided the Company's trustees and officers in a form acceptable to the Company Organizational Documents which shall provide such trustees and the Organizational Documents officers with $10,000,000 of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing aggregate coverage for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after three years following the Effective Time, Date and which shall cause, to the fullest extent permitted under applicable Law, the memorandum have a retention of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification more than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments $250,000. Purchaser may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified 10.3(b) by maintaining in such a manner as to adversely affect force the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to 's present directors’ ' and officers’ ' liability insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiescoverage.
Appears in 2 contracts
Samples: Merger Agreement (Eastgroup Properties Inc), Merger Agreement (Eastgroup Properties Inc)
Indemnification and Insurance. (a) For a period of six years from the Effective Time, the memorandum and articles of association of the Surviving Corporation, subject to compliance with applicable Law, shall contain provisions with respect to exculpation, indemnification and advancement of expenses that are at least as favorable to the directors or officers of the Company as those contained in the memorandum and articles of association in effect immediately as of the date hereof. From and after the Effective Time, each of the Parent and the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, (i) be jointly and severally liable to pay and perform in a timely manner such indemnification, advancement and exculpation obligations, and (ii), to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each individual who at of the Effective Time isforegoing, or at following receipt of any time prior undertakings required by applicable Law), to the Effective Time wassame extent that such persons are entitled to indemnification or advancement pursuant to the memorandum and articles of association of the Company as in effect as of the date hereof, a each current and former director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Personperson’s heirs, executors and or administrators, an “Indemnitee” and, collectively, the “IndemniteesIndemnified Party”) with respect against any costs or expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to all claims, liabilities, losses, damageseach Indemnified Party to the fullest extent permitted by Law and following receipt of any undertaking required by applicable Law), judgments, fines, penaltieslosses, costs (including claims, damages, liabilities and amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civilactual or threatened Actions, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole relating to or in part, connection with any action or omission occurring or alleged to have occurred (Ax) the fact that an Indemnitee is or was in such Indemnified Party’s capacity as a director or officer of the Company or such Subsidiary any of its Subsidiaries or (By) acts or omissions by an Indemnitee in the Indemniteesuch Indemnified Party’s capacity as a director, officer, employeemember, trustee or agent fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request or for the benefit of the Company or such Subsidiary or taken at the request one of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a directorits Subsidiaries, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, before the Effective Time (including acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any Action relating entity if such service was at the request or for the benefit of the Company or one of its Subsidiaries), including, for the avoidance of doubt, in whole or in part connection with (i) the transactions contemplated by this Agreement and (ii) actions to the Transactions or relating to the enforcement of enforce this provision or any other indemnification or advancement right of any Indemnitee), to Indemnified Party. In the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue event of any rule of law attaches to such Indemnitee Action, the Parent and the Surviving Corporation shall reasonably cooperate with the Indemnified Party in respect the defense of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodAction.
(b) For the six-six (6) year period commencing immediately after the Effective TimeTime (the “D&O Tail Period”), the Surviving Company Parent shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, no not less favorable in any material respects to such individuals than those of such policies policy in effect on the date hereof (or the Parent may substitute therefor policies, issued by reputable insurers, of this Agreementat least the same coverage with respect to matters existing or occurring prior to the Effective Time, including a fully-paid “tail” policy for the D&O Tail Period); provided, however, that, if the aggregate annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letterpremium, then the Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual aggregate premium not in excess of 300% of the Maximum Premiumcurrent annual premium; provided, further, however, that any such replacement or substitution of insurance policies shall not result in gaps in coverage. The Subject to the prior consent of the Parent, the Company may shall have the right prior to the Effective Time to purchase, for an aggregate amount not to exceed 300% of the aggregate Maximum Premium for six (6) yearscurrent annual premium, a sixfully-year prepaid paid “tail” policy for the D&O Tail Period on terms and conditions providing at least substantially equivalent benefits as scope with respect to such coverage, and in amount, not less (but not more) favorable in any material respect to such individuals than the current policies of directors’ and officers’ liability insurance maintained by policy in effect on the Company and its Subsidiaries date hereof (including Side A coverage) with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid fully-paid “tail” policy has been obtained by the CompanyCompany prior to the Effective Time, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.8(b) and the Surviving Company Corporation shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions rights of this Section 6.08 are (i) intended to be for the benefit of, and each Indemnified Party hereunder shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution forlimitation of, any other rights to indemnification or contribution that any such individual person may have under the memorandum and articles of association or other organization documents of the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent Subsidiaries or the Surviving Company shall assume all of Corporation, any other indemnification arrangement, the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended toCayman Companies Law, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or its Subsidiaries or otherwise. Parent and Merger Sub agree that all rights to indemnification by the Company now existing in favor of each Indemnified Party pursuant to any of its Subsidiaries for the agreements set forth on Section 5.8(c) of the Disclosure Schedule, including provisions relating to the advancement of expenses incurred in the defense of any action or suit, shall survive the Merger and shall remain in full force and effect. The provisions of this Section 5.8 shall survive the consummation of the Merger and expressly are intended to benefit, and are enforceable by, each of the Indemnified Parties and his or her heirs, each of whom is an intended third-party beneficiary of this Section 5.8, and shall not be terminated or modified in a manner as to adversely affect the rights of any Indemnified Parties.
(d) In the event the Parent, the Surviving Corporation or any of their respective directorssuccessors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, officersin each case, or other employees, it being understood and agreed proper provision shall be made so that the indemnification provided for successors and assigns of the Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.08 is not prior to or in substitution for any such claims under such policies5.8.
Appears in 2 contracts
Samples: Merger Agreement (SMART Global Holdings, Inc.), Merger Agreement (SMART Modular Technologies (WWH), Inc.)
Indemnification and Insurance. (a) From and after the Effective Time until the sixth anniversary of the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, to and the Surviving Company shall (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which who is or was serving at the request of the Company or any of its Subsidiaries owns as a director, officer, manager, employee, fiduciary, agent or trustee (or equivalent position) of another Person (including any equity interests at Joint Venture Entity or employee benefit plan), in each case to the request of the Company extent acting in such capacity (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any threatened or actual Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any Joint Venture Entity or employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any threatened or actual Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that which by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or other intentional dishonesty of which such Indemnitee is determined, in a final non-appealable determination by a Governmental Authority of competent jurisdiction, to be guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time until the sixth anniversary of the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, Parent shall cause the Surviving Company to put in place, and Parent shall maintain prepay in effect full no later than the Effective Time directors’ and officers’ liability “tail” insurance with a claims period of not less than six years from the Effective Time selected by Parent providing terms and conditions as to retentions, limits and other material terms no less favorable than the current policies of directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of maintained by the Company’s current carrier , its Subsidiaries and the Joint Venture Entities with respect to directors’ and officers’ liability insurance covering acts matters existing or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverageTime, and in amount, no less favorable to such individuals than those of such policies in effect on including the date of this AgreementTransactions; provided, however, that, if the aggregate annual premium for such insurance shall exceed 300% of the current annual premium as of the date of this Agreement (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or only be obligated to cause the Surviving Company to be provided purchase a policy for the applicable individuals with the best coverage as shall then be available at an aggregate annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy “tail” insurance to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 5.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.08 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.08 applies shall be third third-party beneficiaries of this Section 6.085.08).
(d) In the event that Parent, the Surviving Company, Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company Surviving Company or entity of such consolidation, amalgamation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.085.08.
(e) In the event of any claim, action, suit, proceeding or investigation in which any claims are made in respect of which such Indemnitee would be entitled to indemnification pursuant to this Section 5.08(e), any Indemnitee wishing to claim such indemnification shall promptly notify Parent thereof in writing, but the failure to so notify shall not relieve Parent or the Surviving Company of any liability it may have to such Indemnitee except to the extent such failure materially prejudices Parent or the Surviving Company. In the event of any such claim, action, suit, proceeding or investigation: (i) Parent or the Surviving Company shall have the right to assume the defense thereof (it being understood that by electing to assume the defense thereof, neither Parent nor the Surviving Company will be deemed to have waived any right to object to the Indemnitee’s entitlement to indemnification hereunder with respect thereto or assumed any liability with respect thereto), except that if Parent or the Surviving Company elects not to assume such defense or legal counsel for the Indemnitee advises that there are issues which raise conflicts of interest between Parent or the Surviving Company and the Indemnitee, the Indemnitee may retain legal counsel satisfactory to Parent and to the provider of any insurance obtained in accordance with Section 5.08(a), and Parent or the Surviving Company shall pay all reasonable and documented fees, costs and expenses of such legal counsel for the Indemnitee as statements therefor are received; provided, however, that (1) Parent and the Surviving Company shall be obligated pursuant to this Section 5.08(e) to pay for only one firm of legal counsel for all Indemnitees in any jurisdiction unless the use of one legal counsel for such Indemnitees would present such legal counsel with a conflict of interest (in which case the fewest number of legal counsels necessary to avoid conflicts of interest shall be used) and (2) the Indemnitee shall have made an undertaking to repay all such fees, costs or expenses paid by Parent or the Surviving Company if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment that the Indemnitee is not entitled to be indemnified by Parent or the Surviving Company; (ii) the Indemnitees shall cooperate in the defense of any such matter if Parent or the Surviving Company elects to assume such defense; (iii) Parent and the Surviving Company shall not be liable for any settlement effected without their prior written consent and the prior written consent of the provider of any insurance obtained in accordance with Section 5.08(a), in each case if Parent or the Surviving Company elects not to assume such defense; and (iv) Parent and the Surviving Company shall not have any obligation hereunder to any Indemnitee if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnified action of such Indemnitee in the manner contemplated hereby is prohibited by applicable Law. Notwithstanding anything herein to the contrary, neither Parent nor the Surviving Company shall settle, compromise or consent to the entry of any judgment in any claim, action, suit or other Proceeding (and in which indemnification could be sought by Indemnitees hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such claim, action, suit or other Proceeding or such Indemnitee otherwise consents in writing.
(f) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries or the Joint Venture Entities for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (New Fortress Energy Inc.), Merger Agreement (Golar LNG LTD)
Indemnification and Insurance. (a) From and after the Effective Time, each of Parent and the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, in each case to the fullest extent permissible by applicable Law, (i) jointly and severally indemnify and hold harmless each individual current or former director or officer of the Company or its Subsidiaries and each other Person who at the Effective Time is, or at any time prior to the Effective Time was, a director indemnified or officer entitled to be indemnified by the Company or its Subsidiaries pursuant to the Company Charter Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the Company, a Subsidiary date of the Company, or any other Person in which this Agreement providing for indemnification between the Company or any of its Subsidiaries owns any equity interests at the request of the Company and such Person (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director member, director, manager, officer, employee or officer agent of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a member, director, manager, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or expense advancement right of any Indemnitee); provided, that (1) the Surviving Corporation shall not be liable for any settlement effected without Parent’s prior written consent (which consent may not be unreasonably withheld, delayed or conditioned), (2) except for counsel engaged for one or more Indemnitees on the date hereof, the Surviving Corporation shall not be obligated under this Section 5.06 to pay the fullest extent permitted fees and expenses of more than one legal counsel (selected by the plurality of the Indemnitees) for all Indemnitees in any jurisdiction with respect to any single Action (unless an Indemnitee reasonably concludes, based upon an opinion of counsel approved by Parent or the Surviving Corporation, which approval shall not be unreasonably withheld, delayed or conditioned, that such Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with defenses or counterclaims of one more other Indemnitees in such Action) and (3) the Surviving Corporation shall have no obligation hereunder to any Indemnitee unless the Surviving Corporation receives an undertaking by or on behalf of such Indemnitee to repay such legal or other expenses if it is ultimately determined under applicable Law; provided Law that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation not entitled to the Companybe indemnified, as finally determined by the Supreme Court of Bermuda; and (ii) assume (in the case of the Surviving Corporation, in the Merger without any further action) all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement (and that have been made available to Parent) or in any agreement in existence as of the date of this Agreement providing for indemnification or advancement of expenses between the Company or any of its Subsidiaries and any Indemnitee. .
(b) Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under permissible by applicable Law, Parent shall cause the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company Corporation, and the Surviving Corporation shall cause the organizational documents of its Subsidiaries, to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities liabilities, indemnification and exculpation, in each case, of members, managers, directors and officers, advancement of expenses and indemnification officers than are set forth as of the date of this Agreement in the Company Organizational DocumentsCharter Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement (and that have been made available to Parent), which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of any of the Indemnitees. In addition, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately from and after the Effective Time, Parent shall cause the Surviving Company Corporation to, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.06 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.06) as incurred to the fullest extent permitted under applicable Law.
(c) None of Parent, the Surviving Corporation or any of its Subsidiaries shall maintain settle, compromise or consent to the entry of any judgment in effect directors’ and officers’ liability insurance from an insurance carrier with the same any threatened or better financial strength of the Company’s current carrier with respect actual litigation, claim or proceeding relating to directors’ and officers’ liability insurance covering any acts or omissions occurring at covered under this Section 5.06 (each, a “Claim”) for which indemnification could be sought by an Indemnitee hereunder, unless such settlement, compromise or prior consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. From and after the Effective Time with respect Time, each of Parent, the Surviving Corporation, its Subsidiaries and the Indemnitees shall reasonably cooperate in the defense of any Claim and shall provide access to Indemnitees on terms properties and scope with respect individuals as reasonably requested and furnish or cause to such coveragebe furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreementconnection therewith; provided, however, thatthat neither Parent nor the Surviving Corporation or any of their its Subsidiaries shall be required to provide such access or information if Parent or the Surviving Corporation, if as applicable, reasonably determines that doing so would risk the annual premium for such insurance shall exceed 300% loss of or waive the protection of any attorney-client privilege of the current annual premium Surviving Corporation or its Affiliates or violate any obligation of confidentiality owing to a third party by the Surviving Corporation or its Affiliates (provided that in each such 300% thresholdcase, to the “Maximum Premium”)extent reasonably practicable and permitted by Law, which Maximum Premium is set forth in Section 6.08(b) Parent or the Surviving Corporation shall inform the Indemnitees as to the general nature of the Company Disclosure Letter, then Parent shall access or information being restricted as a result thereof and use commercially reasonable efforts to provide such access or cause to be provided information in a policy for the applicable individuals with the best coverage as shall then be available at an annual premium manner that does not result in excess any of the Maximum Premium. outcomes described in the foregoing proviso).
(d) The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, shall purchase and bind a six-year prepaid “tailtail policy” policy on terms and conditions reasonably acceptable to Parent and providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the TransactionsTransactions (the “D&O Tail Policy”), or, if substantially equivalent insurance coverage is unavailable, the best available coverage. If such prepaid “tail” policy has been obtained The D&O Tail Policy shall provide by its terms that it will survive the Merger for not less than six years covering acts or omissions occurring at or prior to the Effective Time with respect to those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the Company, it shall be deemed to satisfy all obligations to obtain ’s directors’ and officers’ liability insurance pursuant to this Section 6.08(b) and policies in effect as of the date hereof. The Surviving Company Corporation shall use its reasonable best efforts to cause such policy the D&O Tail Policy to be maintained in full force and effect, for its full term, and to honor perform all of its obligations thereunderthereunder and, if such policy is terminated or canceled nevertheless, obtain (subject to the limitations set forth in the next sentence) an alternative D&O Tail Policy on substantially similar terms as set forth in this Section 5.06(d). In no event shall the Company or the Surviving Corporation be required to pay aggregate premiums for the D&O Tail Policy for its entire period in excess of 300% of the current annual premiums paid by the Company for such insurance (the “Maximum Amount”) (it being understood and agreed that in the event the aggregate premiums necessary to procure such D&O Tail Policy exceeds the Maximum Amount, the Company shall remain obligated to provide, and the Surviving Corporation shall be obligated to obtain, as much comparable insurance as possible for aggregate premiums equal to the Maximum Amount).
(ce) The provisions of this Section 6.08 5.06 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Charter Documents, under the organizational documents of such Subsidiaries as in effect on the date of this Agreement or by Contract, contract or otherwise. The From and after the Effective Time, the obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.06 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.06 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.06 applies and each Indemnitee’s heirs and representatives shall be third third-party beneficiaries of this Section 6.085.06).
(df) In the event that (i) Parent, the Surviving Company, Corporation or any of their respective successors or assigns (iA) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (iiB) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.06.
(eg) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.06 is not prior to or in substitution for any such claims under such policies.
(h) Parent’s and the Surviving Corporation’s obligations under this Section 5.06 shall continue in full force and effect from the Effective Time until the date that is six years after the Effective Time; provided, however, that if any Claim (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.06 shall continue in effect until the full and final resolution of such Claim.
Appears in 2 contracts
Samples: Merger Agreement (Tabula Rasa HealthCare, Inc.), Merger Agreement (Tabula Rasa HealthCare, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a present and former director or and officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (eachin each case, when acting in such capacity) (collectively, together with such Person’s their respective heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesCompany Directors and Officers”) with respect to all claimsagainst any costs or expenses (including reasonable attorneys’ fees), liabilitiesjudgments, fines, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) other Liabilities incurred in connection with any Action (actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, administrative or investigativeinvestigative (an “Indemnified Action”), whenever asserted, based on or arising out of, in whole or in part, (A) of the fact that an Indemnitee such person is or was a director or officer of the Company or such Subsidiary any of its Subsidiaries (or, at the request or (B) acts or omissions by an Indemnitee in for the Indemnitee’s capacity as a director, officer, employee, or agent benefit of the Company or such Subsidiary any of its Subsidiaries, of any other person) at any time at or before the Effective Time, whether pertaining to matters existing or occurring or actions or omissions taken (or alleged to have existed, occurred or been taken) at or after the request of Effective Time, including the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan))transactions contemplated by this Agreement, in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under by applicable Law, and the Surviving Company shall, and Parent shall cause the Surviving Company to, also advance expenses to the Company Directors and Officers in connection with any and all such Indemnified Actions as incurred to the fullest extent permitted by applicable Law; provided provided, that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations each of the Company Directors and Officers to whom expenses are advanced provides an undertaking to repay such Subsidiaries advances if it is ultimately determined by a final and nonappealable judicial determination that such Company Director or Officer is not entitled to indemnification under this Section 5.9(a) or otherwise.
(b) Parent shall cause the Indemnitees in respect of indemnification Surviving Company to agree, and the Company agrees, that all rights to indemnification, exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expensesexpenses now existing in favor of any Company Director or Officer or any current or former employee of the Company or any of its Subsidiaries (together with their heirs, executors and administrators, and the Company Directors and Officers, the “Company Indemnified Parties”) as provided in the Company Organizational Documents and (or the Company Subsidiary Organizational Documents of such Subsidiaries as in effect on the date of this Agreement Documents) or in any agreement indemnification agreements in existence as of the date hereof (i) with any Company Director or Officer or (ii) set forth on Section 5.9(b) of this Agreement providing for indemnification between the Company Disclosure Schedule, shall survive the Merger and any Indemniteeshall continue in full force and effect in accordance with their terms. Without limiting the foregoing, Parent, from and For a period of six years after the Effective Time, Parent shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of cause the Surviving Company to contain provisions no less favorable agree, and the Company agrees, to maintain in effect the Indemnitees with respect to limitation of liabilities of directors indemnification, exculpation and officers, advancement of expenses and indemnification than are set forth as provisions of the date of this Agreement in the Company Organizational Documents (and the Company Subsidiary Organizational Documents) now in effect and any such indemnification agreements of the Company or its Subsidiaries with the Company Indemnified Parties and not to amend, which provisions shall not be amended, repealed, repeal or otherwise modified for a period of six (6) years from the Effective Time modify such provisions in a any manner that would adversely affect the rights thereunder of such Company Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the Indemnitees, except as amendments may be required by applicable Law during such periodfinal disposition or resolution thereof.
(bc) For the six-year a period commencing immediately of six years after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverageshall, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause the Surviving Company to, cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not maintained in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that the Surviving Company may substitute therefor policies with a substantially comparable insurer of at least the same coverage and its Subsidiaries amounts containing terms and conditions which are no less advantageous to the insured) with respect to matters existing claims arising from facts or occurring events, or actions or omissions, which occurred or are alleged to have occurred at or before the Effective Time; provided, however, that the Surviving Company shall not be obligated to make annual premium payments in respect of any one policy year for such insurance to the extent such premiums exceed 250 % of the annual premiums paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Company shall, and Parent shall cause the Surviving Company to, cause to be maintained policies of insurance which, in the Surviving Company’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Parent, or the Company after prior consultation with Parent, may obtain at or prior to the Effective TimeTime a six-year prepaid “tail” policy under the Company’s existing directors’ and officers’ insurance policy providing coverage no greater than the current policies of directors’ and officers’ liability insurance maintained by the Company; provided, including that the Transactions. If Company shall not purchase such prepaid “tail” policy has been obtained for a total cost in excess of 300% of the then current annual premium paid by the Company for such insurance (the “Tail Cap”) without the prior written consent of Parent; provided further that if the total cost for such prepaid “tail” policy exceeds the Tail Cap, then Parent or the Company, it shall be deemed after prior consultation with Parent, may obtain a prepaid “tail” policy with the maximum coverage available for a total cost not to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and exceed the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderTail Cap.
(cd) The rights of each Company Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Company Indemnified Party may have under the Company Organizational Documents (or Company Subsidiary Organizational Documents), any other Contract, any Law or otherwise. The provisions of this Section 6.08 5.9 shall survive the Effective Time and, notwithstanding anything to the contrary in this Agreement, are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, Company Indemnified Party and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)representatives.
(de) In the event that Parent, the Surviving Company, Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Company, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.08.
(e) 5.9. Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of or their respective directors, officers, or other directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.9 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Family Dollar Stores Inc)
Indemnification and Insurance. (a) From and after the Effective Time, in the Surviving Company shallevent of any threatened or actual claim, and Parent shall cause the Surviving Company toaction, suit, proceeding or investigation, whether civil, criminal or administrative (i) indemnify and hold harmless each a “Claim”), including any such Claim in which any individual who at the Effective Time isis now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time wasTime, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company Knight or any of its Subsidiaries owns or GETCO or any equity interests of its Subsidiaries or who is or was serving at the request of the Company Knight or any of its Subsidiaries or GETCO or any of its Subsidiaries as a director or officer of another Person (each, together with such Person’s heirs, executors and administrators, each an “Indemnitee” and, collectively, the “IndemniteesIndemnified Party”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeis, or investigative)is threatened to be, whenever asserted, made a party based on or arising out of, in whole or in partpart on, or arising in whole or in part out of, or pertaining to (Ai) the fact that an Indemnitee he or she is or was a director or officer of the Company Knight or such Subsidiary any of its Subsidiaries or (B) acts GETCO or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent any of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time its Subsidiaries prior to, to the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations this Agreement or any of the Company transactions contemplated by this Agreement, whether asserted or arising before or after the Effective Time, the parties shall cooperate and such Subsidiaries use their best efforts to the Indemnitees in respect of defend against and respond thereto. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement now existing in favor of expenses) any Indemnified Party as provided in the Company Organizational Documents their respective certificates or articles of incorporation or bylaws (or comparable organizational documents), and the Organizational Documents of such Subsidiaries as any existing indemnification agreements set forth in effect on the date of this Agreement or in any agreement in existence as Section 7.10(a) of the date Knight Disclosure Schedule or Section 7.10(a) of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective TimeGETCO Disclosure Schedule (as applicable), shall causesurvive the Mergers and shall continue in full force and effect in accordance with their terms, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from after the Effective Time in a any manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering individuals for acts or omissions occurring at or prior to the Effective Time with respect or taken at the request of Knight or GETCO, it being understood that nothing in this sentence shall require any amendment to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those the certificate of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% incorporation or bylaws of the current annual premium Company.
(such 300% thresholdb) From and after the Effective Time, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) each of the Company Disclosure Letterand the limited liability company surviving the GETCO Merger shall, then Parent shall to the same and fullest extent a Delaware corporation or Delaware limited liability company is permitted to indemnify its officers and directors by applicable Law, indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses, liabilities or cause to be provided a policy for the applicable individuals judgments or amounts that are paid in settlement of or in connection with the best coverage as shall then be available at an annual premium not any Claim based in excess whole or in part on or arising in whole or in part out of the Maximum Premium. The Company may fact that such person is or was a director or officer of GETCO or any Subsidiary of GETCO, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time purchase(including matters, for an aggregate amount not acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby).
(c) From and after the Effective Time, each of the Company and the corporation surviving the Knight Merger shall, to exceed the aggregate Maximum Premium for six same and fullest extent a Delaware corporation is permitted to indemnify its officers and directors by applicable Law, indemnify, defend and hold harmless, and provide advancement of expenses to, each Indemnified Party against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any Claim based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of Knight or any Subsidiary of Knight, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time (6including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby).
(d) years, The Company shall (i) cause GETCO to purchase a six-year prepaid “tailtail policy” policy on terms with respect to acts or omissions occurring prior to the Effective Time that were committed by the covered officers and conditions providing at least substantially equivalent benefits directors in their capacity as such or (ii) either elect to maintain in effect the current policies of directors’ and officers’ liability (and fiduciary) insurance policies currently maintained by Knight for a period of six years from the Effective Time (provided that the Company may substitute therefor policies of at least the same coverage and its Subsidiaries amounts containing terms and conditions that are not less advantageous than such policy) or cause Knight to purchase a six-year prepaid “tail policy” (provided that prior to Closing, Knight may purchase such tail policy), in each case, with respect to matters existing acts or omissions occurring prior to the Effective TimeTime that were committed by the covered officers and directors in their capacity as such; provided, including that in no event shall the Transactions. If Company or Knight (with respect to the Knight policies) or GETCO (with respect to the GETCO policies) be required to expend annually in the aggregate an amount in excess of 250% of the annual premiums currently paid by Knight (which current amount is set forth in Section 7.10(d) of the Knight Disclosure Schedule) for such prepaid insurance (the “Insurance Amounts”); provided, further, that if the annual premiums for such “tail” policy has been obtained by exceed the respective Insurance Amount, then the Company shall cause Knight or GETCO to obtain a “tail” policy with the maximum coverage available for the respective Insurance Amount applied over the term of such policy.
(e) The obligations of the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to the corporation surviving the Knight Merger, and the limited liability company surviving the GETCO Merger under this Section 6.08(b) and 7.10 shall not be terminated or modified by such parties in a manner so as to adversely affect any Indemnified Party or any other person entitled to the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all benefit of its obligations thereunderSection 7.10 without the consent of the affected Indemnified Party.
(cf) The provisions of this Section 6.08 7.10 are (i) intended to be for the benefit of, of and shall be enforceable by, each Indemnitee, his or her heirs, Indemnified Party and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person heirs and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08representatives.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Knight Capital Group, Inc.), Merger Agreement (GETCO Holding Company, LLC)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Holding Company shallwill, or will cause XxxxXxxx XX and Parent shall cause the Surviving Company Xxxxxx II to, (i) indemnify fulfill and hold harmless honor in all respects the obligations of TeleCorp and Tritel pursuant to their respective Certificates of Incorporation and By-laws and any indemnification agreements between TeleCorp, Tritel and each individual who at the Effective Time is, or at any time of their respective directors and officers existing prior to the Effective Time was, a director or officer Time. The Certificate of Incorporation and By-laws of each of XxxxXxxx XX and Xxxxxx II will contain the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) provisions with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee indemnification set forth in the Indemnitee’s capacity as a directorCertificate of Incorporation and By-laws of TeleCorp and Tritel, officerrespectively, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a any manner that would adversely affect the rights thereunder of individuals who, at any time prior to the IndemniteesEffective Time, except as amendments may be were directors, officers, employees or agents of TeleCorp or Tritel, unless such modification is required by applicable Law during such periodlaw.
(b) For the six-year period commencing immediately From and after the Effective Time, the Surviving Holding Company shall maintain will, and will cause XxxxXxxx XX and Xxxxxx II, to the fullest extent permitted under applicable law, to indemnify and hold harmless, each present and former director and/or officer of TeleCorp and Tritel (collectively, the "Indemnified Parties") ------------------- against any costs or expenses (including, without limitation, attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in effect directors’ and officers’ liability insurance from an insurance carrier settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the same extent arising out of or better financial strength pertaining to any action or omission in his capacity as a director or officer of TeleCorp or Tritel, respectively, for a period of six (6) years after the date hereof. Without limiting any of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts foregoing, in the event of any such claim, action, suit, proceeding or omissions occurring at investigation (whether arising before or prior to after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time with respect must be reasonably satisfactory to Indemnitees on terms and scope with respect to such coveragethe Holding Company, (ii) after the Effective Time, the Holding Company will pay, and in amountwill cause XxxxXxxx XX or Xxxxxx II, no less favorable as the case may be, to such individuals than those pay, the reasonable fees and expenses of such policies counsel, promptly after statements therefor are received and (iii) the Holding Company will, and will cause XxxxXxxx XX or Tritel II, as the case may be, to cooperate in effect on the date defense of this Agreementany such matter; provided, however, that -------- ------- neither the Holding Company, XxxxXxxx XX or Xxxxxx II, as the case may be, shall be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld or delayed); and provided, further, that, if in -------- ------- the annual premium event that any claim or claims for indemnification are asserted or made within such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms period, all rights to indemnification in respect of any such claim or claims will continue until the disposition of any and conditions providing at least substantially equivalent benefits all such claims and provided, further, that nothing in this Section 2.4 shall impair any -------- ------- ----------- rights or obligations of any present or former employees, agents, directors or officers of TeleCorp or Tritel. The Indemnified Parties as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries a group may retain only one law firm (in addition to local counsel) to represent them with respect to matters existing or occurring prior to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights positions of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination two or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) more Indemnified Parties. In the event that Parent, the Surviving Holding Company, XxxxXxxx XX, Xxxxxx II or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidationconsolidation or merger, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 2.4, proper provision shall be made so that the successors and ----------- assigns of Parent or the Surviving Company shall XxxxXxxx XX and Tritel II assume all of the obligations thereof set forth in this Section 6.082.4 and none of the ----------- actions described in clause (i) or (ii) shall be taken until such provision is made.
(ec) Nothing in this Agreement is intended For a period of six (6) years after the Effective Time, the Holding Company will, or will cause XxxxXxxx XX and Xxxxxx II to, maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by TeleCorp's and Tritel's directors' and officers' liability insurance policies on terms at least comparable to those in effect on the date hereof; provided, that in no event shall the Holding -------- Company be construed required to, or shall releasebe required to cause XxxxXxxx XX or Xxxxxx II to, waive, or impair any rights to maintain directors’ ' and officers’ ' liability insurance claims under any policy that with comparable coverage if the annual premium of such insurance is more than one hundred and twenty-five percent (125%) of the cost of the most recent annual premium paid by TeleCorp or has been Tritel, as applicable, but in existence with respect such case, the Holding Company shall, and shall cause, as much coverage as possible for such amount to be purchased.
(d) This Section 2.4 will survive the Company or any consummation of its Subsidiaries for any the Mergers, is ----------- intended to benefit the Indemnified Parties, and shall be binding on all successors and assigns of their respective directorsXxxxXxxx XX, officers, or other employees, it being understood Xxxxxx II and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesHolding Company.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Contribution (Telecorp PCS Inc), Agreement and Plan of Reorganization and Contribution (Telecorp PCS Inc)
Indemnification and Insurance. (a) From and after the Effective TimeClosing, the Surviving Company shall, and Parent Purchaser shall cause the Surviving Company toGroup Companies, to the fullest extent permissible by applicable Law, and in each case to the extent provided by and subject to the terms and conditions of the organizational or similar documents of the Group Companies in existence as of the date of this Agreement (ior in any agreement in existence as of the date of this Agreement providing for indemnification between any of the Group Companies and any Indemnitee, in each case a true and complete list of which is forth in Section 5.10(a) of the Seller Disclosure Letter), indemnify and hold harmless each individual who at the Effective Time Closing is, or at any time prior to the Effective Time Closing was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Group Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) Losses in connection with any Action (whether civil, criminal, administrative, or investigative)Proceeding, whenever asserted, to the extent based on or arising out of, in whole or in part, of (A) the fact that an Indemnitee is or was a director or officer of the such Group Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, director or agent officer of the such Group Company or such Subsidiary or taken at the request of the such Group Company or such Subsidiary (including in connection with serving at the request of the such Group Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time Closing (including any Action relating in whole or in part to the Transactions or Proceeding relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), Indemnitee but in each case excluding any Losses to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against arising from such Indemnitee’s position as a director, officer, employee or other agent of Seller or any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to its Affiliates (other than the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any IndemniteeGroup Companies)). Without limiting the foregoing, ParentPurchaser, from and after the Effective TimeClosing, shall cause, to the fullest extent permitted under unless otherwise required by applicable Law, the memorandum of association and bye-laws organizational or similar documents of the Surviving Company Group Companies to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documentsorganizational or similar documents of the Group Companies, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Closing to the extent provided for in the organizational or similar documents of the Group Companies in existence as amendments may be required by of the date of this Agreement (or in any agreement set forth in Section 5.10(a) of the Seller Disclosure Letter), Purchaser shall, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.10 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.10) as incurred to the fullest extent permitted under applicable Law during Law, subject to the receipt of an undertaking to refund such periodamounts to the extent it is determined that such Person is not entitled to indemnification hereunder.
(b) For the six-year period commencing immediately after the Effective TimeClosing, the Surviving Company Purchaser shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time Closing with respect to Indemnitees those individuals who are currently covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies the Company’s current directors’ and officers’ liability insurance policy in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is . The obligations set forth in this Section 6.08(b) of the Company Disclosure Letter, then Parent 5.10 shall provide or cause to be provided deemed satisfied if Purchaser purchases and maintains in effect a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries policy, with respect to matters existing or occurring prior to the Effective TimeClosing, including on terms no less favorable to the Transactions. If such prepaid “tail” policy has been obtained individuals who are covered, immediately prior to the Closing, by the Company’s directors’ and officers’ liability insurance policies if the cost thereof does not exceed 250% of the last annual premium (such amount, it the “Maximum Premium”) paid by the Company for the Company’s directors’ and officers’ liability insurance policies existing immediately prior to the Closing; provided, that if Purchaser and the Company are unable to obtain the insurance described in the prior clause for an amount equal to or less than the Maximum Premium, then Purchaser or the Company shall obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium and, upon so doing, the obligations under this Section 5.10 shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereundersatisfied.
(c) The provisions of this Section 6.08 5.10 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives legal representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documentsorganizational or similar documents of the Group Companies, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company Purchaser under this Section 6.08 5.10 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.10 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.10 applies shall be third party beneficiaries of this Section 6.085.10).
(d) In the event that Parent(i) Purchaser, the Surviving Company, Company or any of their respective successors or assigns (iA) consolidates or amalgamates merges with or merges into any other Person and is not the continuing or surviving company or entity Person of such consolidation, amalgamation, consolidation or merger or (iiB) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Purchaser or any of its successors or assigns dissolves the Company, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent Purchaser or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.085.10.
(e) Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries Group Companies for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.10 is not prior to or in substitution for any such claims under such policies.
(f) Purchaser and the Company’s obligations under this Section 5.10 shall continue in full force and effect for a period of six years from the Closing; provided, however, that if any Proceeding (whether arising before, at or after the Closing) is brought against an Indemnitee on or prior to the sixth anniversary of the Closing, the provisions of this Section 5.10 shall, with respect to such Proceeding, continue in effect until the full and final resolution of such Proceeding.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Pilgrims Pride Corp)
Indemnification and Insurance. (a) From and after the Effective Time14.1 ZOGENIX shall defend, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time isDESITIN, or at any time prior to the Effective Time wasits Affiliates and its and their officers, a director or officer of the Companydirectors, a Subsidiary of the Companyemployees, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company agents and contractors (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesDESITIN Parties”) with respect to from and against any and all claims, liabilitiesactions, demands, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and reasonable expenses (including fees reasonable legal and expenses of legal counselexpert fees) made or brought by Third Parties (“Claims”) arising from or in connection with any Action with:
(whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (Aa) the fact that an Indemnitee is personal injury or was a director or officer death caused by the defective design and/or manufacture of the Company Product when supplied to DESITIN by ZOGENIX or such Subsidiary its designee; or (B) acts or omissions by an Indemnitee in *** Certain information on this page has been omitted and filed separately with the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any IndemniteeCommission. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees Confidential treatment has been requested with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodomitted portions.
(b) For the six-year period commencing immediately breach of the warranties given by ZOGENIX under this Agreement, or
(c) the negligence of ZOGENIX Parties (as defined below) in the research, development, marketing, distribution, sale or use of the Product before the Effective Date both in or outside the Territory, or
(d) the negligence of ZOGENIX Parties in the research, development, marketing, distribution, sale or use of the Product following the Effective Date outside the Territory, provided that, in each case, such Claims do not arise from the negligence or wilful default of the DESITIN Parties.
14.2 DESITIN shall defend, indemnify and hold harmless ZOGENIX, its Affiliates and its and their officers, directors, employees, agents and contractors (the “ZOGENIX Parties”) from and against any and all Claims arising from or in connection with:
(a) the development, marketing, distribution, sale or use of the Product in the Territory after the Effective TimeDate;
(b) the negligence by DESITIN Parties in relation to the development, marketing, distribution, sale or use of the Product in the Territory after the Effective Date; or
(c) the breach of the warranties given by DESITIN under this Agreement, provided that, in each case, such Claims do not arise from the negligence or wilful default of the ZOGENIX Parties. For the avoidance of doubt DESITIN shall in no event be liable for any claims arising from or in connection with the infringement of Third Party Rights, particularly patents and trademarks, caused by the manufacture or composition of the Product or the use of the Trademark.
14.3 Each Party shall promptly provide the other Party with copies of all papers and official documents received in respect of any Claims and shall cooperate as reasonably requested by the other Party in the defence of any Claims. The Party which is indemnifying the other Party hereunder shall have control of, and discretion in, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength handling of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to defense and/or settlement of any such Claim, including, without limitation, the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those selection of such policies in effect on the date of this Agreementdefense counsel; provided, however, thatthat the indemnified Party may take any appropriate action necessary to preserve or avoid prejudice to its interests, if or the annual premium interests of the indemnifying Party, in the event that (1) notice to the indemnifying Party cannot be given in sufficient time for such Party to take action, or (2) the indemnifying Party, after prompt notice and inquiry from the indemnified Party, fails to acknowledge its obligation to indemnify the indemnified Party under this Clause 14.
14.4 Each Party shall maintain, at its own cost, comprehensive product liability insurance shall exceed 300% of the current annual premium (and general commercial liability insurance adequate to cover their respective obligations under this Agreement in such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries Parties customarily maintain with respect to matters existing its other products and which is reasonable and customary in the pharmaceutical industry in their respective territories for companies of comparable size and activities. Each Party shall maintain such insurance policy for not less than [***] ([***]) years following the expiry or occurring prior termination of this Agreement. A certificate of insurance and any other documentation necessary to prove compliance with this provision will be provided to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderother Party upon request.
14.5 TO THE FULL EXTENT PERMITTED BY LAW, APART FROM THE FOREGOING WARRANTIES AND INDEMNITY OR SUCH WARRANTIES OR INDEMNITY AS MAY BE CONTAINED WITHIN THE MANUFACTURING AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, ARISING FROM CONTRACT OR TORT (c) The provisions of this Section 6.08 are (i) intended to be for the benefit ofEXCEPT FRAUD), and shall be enforceable byIMPOSED BY STATUTE OR OTHERWISE, each IndemniteeRELATING TO THE PRODUCTS AND/OR ANY LICENSED TECHNOLOGY, his or her heirsINCLUDING ANY WARRANTIES AS TO MERCHANTABILITY, and his or her Representatives and (ii) in addition toFITNESS FOR PURPOSE, and not in substitution forCORRESPONDENCE WITH DESCRIPTION, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)OR NON-INFRINGEMENT.
(d) In the event that Parent14.6 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, the Surviving CompanyINCIDENTAL OR SPECIAL DAMAGES, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidationINCLUDING ANY LOSS OF PROFITS, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Licensing and Distribution Agreement (Zogenix, Inc.), Licensing and Distribution Agreement (Zogenix, Inc.)
Indemnification and Insurance. (a) From Supplier shall defend Buyer, its directors, officers, employees, representatives, successors, assigns distributors, dealers, affiliates and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, customers (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesIndemnified Parties”) during the term of this Contract and thereafter from any actual or asserted claims or demands, including without limitation claims for death, personal injury, or property damage, resulting from, arising out of or in any way connected with any act, failure to act, neglect or omission of Supplier, its agents, employees, subcontractors or sub-suppliers (including any employee, agent or invitee of any of them) during the performance of this Contract or in connection with the Products, Services and/or Deliverables or parts thereof including: (i) any allegation that any Product, Service and/or Deliverable (including any article, apparatus, material, component or part thereof incorporated therein) as well as any article, device or process resulting from the intended use thereof or any process or method furnished by Supplier for making or using a Product, Service and/or Deliverable, constitutes an infringement or misappropriation of any patent, copyright or other intellectual property right (the “IP Indemnity”); (ii) any failure of a Product, Service and/or Deliverable to comply with applicable specifications (functional, design or otherwise), warranties, or certifications under this Contract; (iii) the negligence, willful misconduct or other tortious conduct of Supplier or Supplier Personnel in design, manufacture or otherwise with respect to a Product or Deliverable or parts therefor or Services rendered hereunder or otherwise in connection herewith; (iv) claims based on strict or product liability relating to a Product or Deliverable; (v) failure to warn or inadequate warnings or instructions or (vi) failure of a Product and/or Deliverable to perform in accordance with its intended use (each of the preceding roman numerates (i)-(vi) are referred to herein as a “Claim”) and indemnify the Indemnified Parties against all claimslosses, liabilitiesliability, lossesjudgments, damages, judgmentscosts, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including attorney fees and expenses of legal counselrelated expenses) in connection with any Action (whether civilcollectively, criminal, administrative, or investigative), whenever asserted, based on or “Losses”) arising out of, in whole from or in partany way connected to a Claim. Supplier agrees to include this clause in all related subcontracts. The provisions of this Section 18 shall survive the termination or expiration of this Contract.
(b) If a Claim is asserted against an Indemnified Party, (A) the fact that an Indemnitee is or was a director or officer Buyer shall notify Supplier of the Company Claim and Buyer may elect to either (i) hire its own counsel and defend against and resolve the Claim at Supplier’s expense or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume require Supplier to select counsel reasonably acceptable to Buyer and defend the Claim. If Buyer elects to hire its own counsel and defend against and resolve the Claim, Supplier shall advance and reimburse Buyer for all obligations related Losses as they are incurred by Buyer and Supplier shall pay any Losses resulting from the Claim. If defense of the Company Claim includes defense of allegations against non-Supplier products (a “Multi-Supplier Claim”), then Supplier shall advance and such Subsidiaries to the Indemnitees in respect reimburse Buyer for Supplier’s pro- rata share (as measured by Supplier’s total Product units as a percentage of indemnification and exculpation from liabilities for acts or omissions occurring product units at or prior to the Effective Time (and rights for advancement of expenses) as provided issue in the Company Organizational Documents Multi-Supplier Claim, the “Pro-Rata Share”) of Losses as they are incurred by Buyer, and Supplier shall pay Supplier’s Pro-Rata Share of any Losses resulting from the Organizational Documents of such Subsidiaries as in effect on Multi-Supplier Claim.
(c) For the date duration of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company Contract and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder date of provision of the IndemniteesProducts and/or Services and Deliverables, except as amendments may be required by applicable Law during such period.Supplier shall maintain, through insurers with a minimum
(b1) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ bodily injury/property damage; (2) personal/advertising injury; and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b3) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Timeproducts/completed operations liability, including coverage for contractual liability insuring the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to liabilities assumed in this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in with all such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth coverages in this Section 6.08.
(e18(b) Nothing in this Agreement is intended toapplying on a primary basis, shall be construed toproviding for cross liability, or shall releasenot being subject to any self-insured retention and being endorsed to name Buyer, waiveits affiliates, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, agents and employees as additional insureds; (ii) Business Automobile Liability Insurance covering all owned, hired and non-owned vehicles used in the performance of this Contract in the amount of USD $2,000,000.00 combined single limit each occurrence; (iii) Employers’ Liability in the amount of USD 3,000,000.00 each accident, injury or other employeesdisease; (iv) Property Insurance on an “All risk” basis covering the full replacement cost value of all of Buyer’s property in Supplier’s care, it custody or control, with such policy being understood endorsed to name Buyer as “Loss Payee” as its interests may appear; (v) if Supplier will have access to Buyer’s funds or accounts, Crime Insurance (also known as Employee Dishonesty insurance / Fidelity Bond) in an amount of not less than $1,000,000 covering all Supplier Personnel and agreed including a Client’s Interest endorsement or Insuring Agreement specifying that coverage extends to Buyer’s property in the event of any theft of Buyer money or property, or money or property of others for which Buyer is responsible; and (vi) appropriate Workers’ Compensation Insurance protecting Supplier from all claims under any applicable Workers’ Compensation or Occupational Disease Act. Supplier shall obtain coverage similar to Workers’ Compensation and Employers’ Liability for each Supplier employee performing work under this Contract outside of the U.S. To the extent that this Contract is for professional Services, Supplier shall maintain Professional Errors and Omission Liability insurance in the minimum amount of $5,000,000.00 per claim; if Supplier will have access to Buyer’s IT systems or restricted data, coverage must also include loss of and/or mishandling of data containing private or confidential information of Buyer or others for which Xxxxx is responsible, and failure to prevent unauthorized access to, or use of, Buyer’s systems or data. If the scope of Services involves the potential for an environmental release, Supplier shall maintain Environmental Impairment (also known as Pollution) Liability with a limit of not less than $10,000,000 per occurrence covering on-site and off- site bodily injury and property damage, including clean-up cost as a result of pollution conditions arising from the Supplier’s operations, including completed operations. If coverage is provided on a claims-made form, the retroactive date must precede the effective date of this agreement and provide for continuity in cover for (1) year after the completion of the Services If any insurance is on a claims- made basis, the retro date must precede the date of issuance of this Contract and Supplier must maintain continuity of coverage for three (3) years following termination, expiration and/or completion of this Contract. Insurance specified in sub-sections 18(b)(i), (ii) and (iii) shall be endorsed to provide a waiver of subrogation in favor of Buyer, its affiliates and its and their respective employees for all losses and damages covered by the insurances required in such subsections. The application and payment of any self-insured retention or deductible on any policy carried by Supplier shall be the sole responsibility of Supplier. Should Buyer be called upon to satisfy any self-insured retention or deductible under Supplier’s policies, Buyer may seek indemnification or reimbursement from Supplier where allowed by Law. Upon request by Xxxxx, Supplier shall provide Buyer with a certificate(s) of insurance evidencing that the indemnification provided for required minimum insurance is in this Section 6.08 is effect. The certificate(s) of insurance shall reference that the required coverage extensions are included on the required policies. Upon request by Xxxxx, copies of endorsements evidencing the required additional insured status, waiver of subrogation provision and/or loss payee status shall be attached to the certificate(s) of insurance. Acceptance of such certificate(s), which are not prior to compliant with the stipulated coverages, shall in no way whatsoever imply that Buyer has waived its insurance requirements or any other obligations set forth herein. The above-referenced insurance limits in substitution for any such claims under such policiessubsections (i), (ii) and (iii) can be met either via each policy or via a combination of these policies and an excess/umbrella liability insurance policy.
Appears in 2 contracts
Samples: Conditions of Purchase, Conditions of Purchase
Indemnification and Insurance. (a) From TEGP and after the Effective Time, the Surviving Company shall, Entity jointly and Parent shall cause the Surviving Company to, (i) severally agree to indemnify and hold harmless each individual who at the Effective Time isPartnership Indemnified Parties from and against any and all losses, or at any time prior to the Effective Time wasclaims, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claimsdamages, liabilities, lossesjoint or several, damagesexpenses (including legal fees and expenses), judgments, fines, penalties, costs (including interest, settlements or other amounts paid in settlement arising from any and all threatened, pending or compromise)completed claims, and expenses (including fees and expenses of legal counsel) in connection with any Action (demands, actions, suits or proceedings, whether civil, criminal, administrative, administrative or investigative), whenever assertedand whether formal or informal and including appeals, based on relating to or arising out ofof this Agreement or the Transactions, in whole which any such Partnership Indemnified Party may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as a Partnership Indemnified Party and acting (or omitting or refraining to act) in part, (A) such capacity on behalf of or for the fact that an Indemnitee is or was a director or officer benefit of the Company or Partnership, and to advance to such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary Partnership Indemnified Party expenses (including legal fees and expenses) incurred by such Partnership Indemnified Party in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan))therewith, in each case under clause to the same extent provided in, and in accordance with, the Organizational Documents of the Partnership and the General Partner as of the Execution Date.
(Ab) or (B)TEGP shall, at, or at any time prior and shall cause the members of the Partnership Group to, the Effective Time (including any Action relating in whole or in part honor all rights to the Transactions or relating to the enforcement indemnification, advancement of this provision or any other indemnification or advancement right expenses, elimination of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement including the Transactions) now existing in favor of expenses) the Partnership Indemnified Parties as provided in the Company Organizational Documents of any member of the Partnership Group, under applicable Delaware Law or otherwise, and shall ensure that the Organizational Documents of such Subsidiaries as in effect on the date Surviving Entity and the General Partner (or their successor entities) shall, for a period of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after six years following the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees advantageous with respect to limitation of liabilities of directors and officersindemnification, advancement of expenses expenses, elimination of liability and indemnification exculpation of their present and former directors, officers, employees and agents than are set forth in the Organizational Documents of the Partnership and the General Partner as of the date of this Agreement in the Company Organizational Documents, which provisions Execution Date. This Section 5.16(a) shall not be amended, repealed, terminated or otherwise modified for a period of six (6) years from the Effective Time at any time in a manner that would adversely affect the rights thereunder of a Partnership Indemnified Party as provided therein except with the Indemniteesprior written consent of such Partnership Indemnified Party, except as amendments may and shall be required enforceable by applicable Law during such periodany Partnership Indemnified Party and its heirs and representatives against TEGP and its successors and assigns.
(bc) For the six-year a period commencing immediately of six years after the Effective Time, the Surviving Company TEGP shall maintain in effect directorsofficers’ and officersdirectors’ liability insurance from an insurance with a nationally reputable carrier with the same covering each Partnership Indemnified Party who is or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or any time prior to the Effective Time was covered by the existing officers’ and directors’ liability insurance applicable to the members of the Partnership Group (“D&O Insurance”), on terms substantially no less advantageous to the Partnership Indemnified Parties, as applicable, than such existing insurance with respect to Indemnitees on terms and scope with respect acts or omissions, or alleged acts or omissions, prior to such coveragethe Effective Time (whether claims, and in amountactions or other Actions relating thereto are threatened, no less favorable to such individuals than those of such policies in effect on commenced, asserted or claimed before or after the date of this AgreementEffective Time); provided, however, that, if the that TEGP shall not be required to pay an annual premium for such insurance shall exceed the D&O Insurance for the Partnership Indemnified Parties in excess of 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) currently paid by members of the Company Disclosure LetterPartnership Group for such insurance, then Parent but shall provide or purchase as much of such coverage as possible for such applicable amount. TEGP shall have the right to cause such coverage to be provided a policy for extended under the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, D&O Insurance by obtaining a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior no less advantageous to the Effective TimePartnership Indemnified Parties than the existing D&O Insurance, including the Transactions. If and such prepaid “tail” policy has been obtained by shall satisfy the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to provisions of this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder5.16.
(cd) The provisions of this Section 6.08 5.16 shall survive the consummation of the Merger and the other Transactions for a period of six years and expressly are (i) intended to be benefit each of the Partnership Indemnified Parties; provided, however, that in the event that any claim or claims for the benefit ofindemnification or advancement set forth in this Section 5.16 are asserted or made within such six-year period, all rights to indemnification and advancement in respect of any such claim or claims shall continue until disposition of all such claims. The rights of any Partnership Indemnified Party under this Section 5.16 shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, to any other rights to indemnification or contribution that any such individual Partnership Indemnified Party may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights Documents of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination member of the Partnership Group or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Applicable Law.
(de) In the event that Parent, the Surviving Company, TEGP or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each either such case, TEGP shall cause proper provision shall to be made so that the its successors and assigns of Parent or assigns, as the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.085.16.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Tallgrass Energy GP, LP)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company toCorporation to indemnify, (i) indemnify defend and hold harmless to the fullest extent permitted under applicable law each individual person who at the Effective Time is, or has been at any time prior to the Effective Time wasTime, an officer or director of Titan (or a director Titan Subsidiary or officer division thereof) and each person who served at the request of Titan as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an "Indemnified Person" and, collectively, the "Indemnified Persons") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) the Company shall cause the Surviving Corporation to pay, as incurred, the fees and expenses of counsel selected by the Surviving Corporation, which counsel shall be reasonably acceptable to the Indemnified Person, in advance of the Companyfinal disposition of any such Action to the fullest extent permitted by applicable law, a Subsidiary and, if required, upon receipt of any undertaking required by applicable law, and (ii) the Company will, and will cause the Surviving Corporation to, cooperate in the defense of any such matter; provided, however, the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further, that the Surviving Corporation shall not be obligated pursuant to this Section 6.21 to pay the fees and disbursements of more than one counsel for all Indemnified Persons in any single Action, unless, in the good faith judgment of any of the CompanyIndemnified Persons, there is or may be a conflict of interests between two or more of such Indemnified Persons, in which case there may be separate counsel for each similarly situated group.
(b) The parties agree that the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation, bylaws and any indemnification agreement of Titan and the Titan Subsidiaries with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Action pending or asserted or claim made within such period shall continue until the disposition of such Action or resolution of such claim.
(c) The parties agree that Titan shall be permitted on or before the Closing Date to procure officers' and directors' liability insurance covering the Indemnified Persons who are, on the date of this Agreement and/or at the Effective Time, officers or directors of Titan with respect to, among other things, acts or omissions, or alleged acts or omissions, prior to the Effective Time (whether claims, actions or other proceedings relating thereto are commenced, asserted or claimed before or after the Effective Time); provided, however, that without the consent of Union Oil the aggregate premiums for such insurance for the full term thereof shall not exceed $700,000.
(d) The rights of each Indemnified Person hereunder shall be in addition to any other rights such Indemnified Person in which may have under the certificate of incorporation or bylaws of Titan or the Titan Subsidiaries, under the DGCL or otherwise. The provisions of this Section 6.21 shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
(e) In the event the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Company, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.086.21.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Titan Exploration Inc), Merger Agreement (Unocal Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shallEntity shall indemnify, defend and Parent hold harmless to the fullest extent permitted under applicable law each person who is, or has been at any time prior to the Effective Time, an officer or director of Xxxxxx (or any Subsidiary or division thereof) and each person who served at the request of Xxxxxx as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) Edge shall cause the Surviving Company toEntity to pay, as incurred, the fees and expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Entity, in advance of the final disposition of any such Action to the fullest extent permitted by applicable law and, if required, upon receipt of any undertaking required by applicable law, and (iii) indemnify Edge and hold harmless the Surviving Entity will cooperate in the defense of any such matter; provided, however, the Surviving Entity shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further, that Edge and the Surviving Entity shall not be obligated pursuant to this Section 7.13 to pay the fees and disbursements of more than one counsel (plus one firm of local counsel, if any) for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each individual who at similarly situated group.
(b) The parties agree that the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation and bylaws of Xxxxxx and its Subsidiaries with respect to matters occurring through the Effective Time isTime, shall survive the Merger.
(c) For a period of six years after the Effective Time, Edge and the Surviving Entity shall cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are, or at any time prior to the Effective Time waswere, a director or officer covered by Xxxxxx'x existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Indemnified Parties than such existing insurance, provided that Edge and the Surviving Entity shall not be required to pay annual premiums in excess of 200% of the Companylast annual premium paid by Xxxxxx prior to the date hereof (the amount of which premium is set forth in the Xxxxxx Disclosure Letter), a Subsidiary but in such case shall purchase as much coverage as reasonably practicable for such amount.
(d) The rights of the Company, or each Indemnified Party hereunder shall be in addition to any other Person in which rights such Indemnified Party may have under the Company certificate of incorporation or bylaws of Xxxxxx or any of its Subsidiaries owns any equity interests at the request of the Company (eachSubsidiaries, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemniteeotherwise. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 7.13 shall survive the consummation of the Merger and expressly are (i) intended to be for benefit each of the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Indemnified Parties.
(de) In the event that ParentEdge, the Surviving Company, Entity or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent Edge or the Surviving Company Entity, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.087.13.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Miller Exploration Co), Merger Agreement (Edge Petroleum Corp)
Indemnification and Insurance. (a) From and after the Effective Time, Transocean and the Surviving Company shallEntity shall indemnify, defend and Parent shall cause hold harmless to the Surviving Company tofullest extent permitted under Applicable Law each Person who is, or has been at any time prior to the Effective Time, an executive officer or director of Transocean or GlobalSantaFe (or any Subsidiary or division thereof) and each Person who served at the request of Transocean or GlobalSantaFe as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”) against all losses, claims, damages, liabilities, costs or expenses (including attorneys’ fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an “Action”), (i) indemnify Transocean and hold harmless the Surviving Entity shall pay, as incurred, the fees and expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to Transocean and the Surviving Entity, in advance of the final disposition of any such Action to the fullest extent permitted by Applicable Law and, if required, upon receipt of any undertaking required by Applicable Law, and (ii) Transocean and the Surviving Entity will cooperate in the defense of any such matter; provided, however, Transocean and the Surviving Entity shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further, that Transocean and the Surviving Entity shall not be obligated pursuant to this Section 7.13 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each individual who at similarly situated group.
(b) Each of the parties agrees that the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in its memorandum of association and articles of association with respect to matters occurring through the Effective Time isTime, shall survive the Merger.
(c) For a period of six years after the Effective Time, Transocean and the Surviving Entity shall cause to be maintained officers’ and directors’ liability insurance covering the Indemnified Parties who are, or at any time prior to the Effective Time waswere, a director or officer covered by Transocean and GlobalSantaFe’s existing officers’ and directors’ liability insurance policies on terms substantially no less advantageous to the Indemnified Parties than such existing insurance, provided that Transocean and the Surviving Entity shall not be required to pay annual premiums in excess of 250% of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts last annual premium paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or Transocean prior to the Effective Time date hereof (and rights for advancement the amount of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Transocean Disclosure Letter), then Parent but in such case shall provide or cause to be provided a policy for the applicable individuals with the best purchase as much coverage as reasonably practicable for such amount (but in no event shall then Transocean or the Surviving Entity be available at required to purchase coverage in an annual premium not amount in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance coverage currently maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08Transocean).
(d) The rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may have under the memorandum of association, articles of association or comparable organizational documents of Transocean or any of its Subsidiaries or GlobalSantaFe or any of its Subsidiaries, as applicable, under Applicable Law or otherwise. The provisions of this Section 7.13 shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
(e) In the event that ParentTransocean, the Surviving Company, Entity or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent Transocean or the Surviving Company Entity, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.087.13.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Transocean Inc), Merger Agreement (Globalsantafe Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent Park Sterling shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Companycurrent or former directors, a Subsidiary officers or employees of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” andIndemnified Party”), collectivelyand any person who becomes an Indemnified Party between the date hereof and the Effective Time, the “Indemnitees”) with respect to all claims, liabilities, losses, damagesagainst any costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, penaltieslosses, costs (including claims, damages or liabilities and amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) incurred in connection with any Action (actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, administrative or investigative), whenever assertedarising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, based on or arising out of, in whole or in partpart on, or arising in whole or in part out of, or pertaining to (Ai) the fact that an Indemnitee he or she is or was a director or officer of the Company Company, any of its Subsidiaries or any of their respective predecessors or was prior to the Effective Time serving at the request of any such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity party as a director, officer, employee, trustee or agent partner of the Company another corporation, partnership, trust, joint venture, employee benefit plan or such Subsidiary other entity or taken at the request of the Company or such Subsidiary (including ii) any matters arising in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of transactions contemplated by this provision or any other indemnification or advancement right of any Indemnitee)Agreement, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be such person would have been indemnified against any liability that by virtue or have the right to advancement of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation expenses pursuant to the Company, as finally determined by the Supreme Court ’s certificate of Bermuda; incorporation and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries bylaws as in effect on the date of this Agreement or in any agreement in existence and as of the date of this Agreement providing for indemnification between the Company permitted by applicable Law, and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, Park Sterling shall cause, also advance expenses as incurred to the fullest extent permitted under applicable Law, provided, that the memorandum person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.5(a), upon learning of association any action, suit, proceeding or investigation described above, shall promptly notify Park Sterling thereof. Any failure to so notify shall not affect the obligations of Park Sterling under Section 5.5(a) unless and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation extent that Park Sterling is prejudiced as a result of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions such failure.
(c) Park Sterling shall not be amended, repealedmaintain, or otherwise modified shall cause to be maintained, in effect for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after following the Effective Time, the Surviving Company shall maintain in effect current directors’ and officers’ liability insurance from an insurance carrier with policies covering the officers and directors of the Company and the Bank (provided, that Park Sterling may substitute therefor policies of at least the same or better financial strength of the Company’s current carrier coverage containing terms and conditions which are not materially less favorable) with respect to directors’ claims against such officers and officers’ liability insurance covering acts directors arising from facts or omissions events occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this AgreementTime; provided, however, thatthat in no event shall Park Sterling be required to expend annually pursuant to this Section 5.5(c) more than 200% of the annual premiums currently paid by the Company or the Bank for such insurance (the “Insurance Amount”); provided, further, that if the amount of the annual premium for necessary to maintain or procure such insurance coverage exceeds the Insurance Amount, Park Sterling shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current maintained policies of directors’ and officers’ liability insurance maintained by that, in Park Sterling’s good faith determination, provide the maximum coverage available at an annual premium equal to the Insurance Amount. In lieu of the foregoing, Park Sterling, or the Company and its Subsidiaries with respect to matters existing the prior written consent of Park Sterling, may obtain on or occurring prior to the Effective Time, including the Transactions. If such prepaid a six-year “tail” prepaid policy has been obtained by providing equivalent coverage (without any requirement to pay more than the CompanyInsurance Amount), it shall be deemed to satisfy all obligations to obtain insurance pursuant to that described in this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.085.5(c).
(d) In the event that Parent, the Surviving Company, Park Sterling or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) liquidates, dissolves, transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the such successor and assign of Park Sterling and its successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.085.5.
(e) Nothing in The provisions of this Agreement is Section 5.5 are intended toto be for the benefit of, and shall be construed toenforceable by, each Indemnified Party and his or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesher representatives.
Appears in 2 contracts
Samples: Merger Agreement (Park Sterling Corp), Merger Agreement (Provident Community Bancshares, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, Parent and the Surviving Entity shall indemnify, defend and hold harmless to the fullest extent permitted under applicable law each person who is, or has been at any time prior to the Effective Time, an officer or director of the Company shall(or any Subsidiary or division thereof) and each person who served at the request of the Company as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, claims, damages, liabilities, costs or expenses (including attorneys' fees), judgments, fines, penalties and Parent shall cause amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such, whether commenced, asserted or claimed before or after the Surviving Company toEffective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) indemnify Parent and hold harmless the Surviving Entity shall pay, as incurred, the fees and expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Entity, in advance of the final disposition of any such Action to the fullest extent permitted by applicable law and, if required, upon receipt of any undertaking required by applicable law, and (ii) Parent and the Surviving Entity will cooperate in the defense of any such matter; provided, however, the Surviving Entity shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further, that Parent and the Surviving Entity shall not be obligated pursuant to this Section 7.13 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the good faith judgment of any of the Indemnified Parties, there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each individual who at similarly situated group.
(b) The parties agree that the rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, in the certificate of incorporation and bylaws of the Company and its Subsidiaries with respect to matters occurring through the Effective Time isTime, shall survive the Merger.
(c) For a period of six years after the Effective Time, Parent and the Surviving Entity shall cause to be maintained officers' and directors' liability insurance covering the Indemnified Parties who are, or at any time prior to the Effective Time wasTime, a director or officer covered by the Company's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Indemnified Parties than such existing insurance, provided that Parent and the Surviving Entity shall not be required to pay annual premiums in excess of 150% of the Companylast annual premium paid by the Company prior to the date hereof (the amount of which premium is set forth in the Company Disclosure Letter), a Subsidiary but in such case shall purchase as much coverage as reasonably practicable for such amount.
(d) The rights of the Company, or each Indemnified Party hereunder shall be in addition to any other Person in which rights such Indemnified Party may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries owns any equity interests at the request of the Company (eachSubsidiaries, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemniteeotherwise. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 7.13 shall survive the consummation of the Merger and expressly are (i) intended to be for benefit each of the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Indemnified Parties.
(de) In the event that Parent, the Surviving Company, Entity or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, then and in each either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Entity, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.087.13.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (R&b Falcon Corp), Merger Agreement (R&b Falcon Corp)
Indemnification and Insurance. (a) From and after the Effective Time, Parent and the Surviving Company shallCorporation, jointly and Parent severally, shall cause the Surviving Company to, (i) indemnify indemnify, defend and hold harmless each individual who at the Effective Time ispast and present directors and officers (including for the avoidance of doubt persons holding similar positions, or at any time prior to the Effective Time was, such as managers of a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request limited liability company) of the Company and its Subsidiaries (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel, experts and litigation consultants, and the cost of any appeal bonds) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative, each a “Proceeding”), whenever asserted, based on or arising out of, in whole or in part, (A1) the fact that an Indemnitee is or was a director director, officer or officer employee of the Company or such of a Subsidiary of the Company or (B2) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, director or agent officer of the Company or such of a Subsidiary of the Company or taken at the request of the Company or such of a Subsidiary of the Company (including in connection with serving at the request of the Company or such of a Subsidiary of the Company as a director, officer, employee, agent, trustee, director or fiduciary officer of another Person (including any employee benefit plan)), in each case under clause (A1) or (B2), at, or at any time prior to, the Effective Time (including any Action claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeShare Exchange Transactions), to the fullest extent permitted under applicable Law; Law and as provided that no Indemnitee shall be indemnified against any liability that by virtue under the certificate of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; incorporation and (ii) assume all obligations by-laws of the Company and such Subsidiaries to under any indemnification agreements (the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses“Indemnification Agreements”) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or Agreement. The Surviving Corporation shall advance all fees and expenses (including without limitation fees and expenses of legal counsel, experts, litigation consultants, and the cost of any appeal bonds) incurred by Indemnitee in connection with any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and Proceeding within ten (10) Business Days after the Effective Timereceipt by the Surviving Corporation of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding. The Indemnitee shall causequalify for advances, to the fullest extent permitted under applicable Law, solely upon the memorandum execution and delivery to the Surviving Corporation of association and bye-laws an undertaking providing that the Indemnitee undertakes to repay the advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Organizational Documents of the Surviving Company Corporation, applicable Law or otherwise. Without limiting the foregoing, from and after the Effective Time, Parent shall cause the Organizational Documents of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, indemnification and advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational DocumentsDocuments of the Company, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, Parent and the Surviving Company Corporation shall maintain in effect and extend all directors’ and officers’ liability insurance from an insurance carrier with policies (both primary and any and all excess policies) maintained by the same or better financial strength Company on the date of this Agreement (collectively, the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to “Current D&O Policies”) for a period of not less than six (6) years after the Effective Time with respect to Indemnitees claims arising in whole or in part from facts or events that actually or allegedly occurred on terms and scope or before the Effective Time, including in connection with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date approval of this AgreementAgreement and the Transactions or the Share Exchange Transactions; provided, however, thatthat Parent may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to the covered persons; provided, further, that if the annual premium Current D&O Policies expire or are terminated or cancelled during such period through no fault of Parent or the Surviving Corporation, then Parent or the Surviving Corporation shall obtain substantially similar D&O insurance; provided further, however, that in no event shall Parent be required to pay aggregate premiums for such similar insurance shall exceed in excess of 300% of the current last annual premium premiums paid in the aggregate by the Company for the Current D&O Policies, as set forth on Section 5.8 of the Company Disclosure Schedule (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) . In lieu of the foregoing, the Company Disclosure Letter, then Parent may obtain one or more prepaid and non-cancelable directors’ and officers’ insurance tail policies applicable for the period of six (6) years commencing at the Effective Time (including with respect to acts or omissions in connection with the Transactions or the Share Exchange Transactions) and ending on the six (6)-year anniversary of the Effective Time (the “D&O Tail Period”); such insurance policies shall provide or cause at least the same coverage with respect to be provided a policy amounts, scope, terms and conditions as the Current D&O Policies; provided, that the aggregate premium for such prepaid policies shall not exceed the Maximum Premium, and provided, further, that if the Company is unable to obtain, prior to the Effective Time, insurance tail policies meeting the above requirements, the Company may instead obtain prior to the Effective Time as much comparable insurance for the applicable individuals with the best coverage D&O Tail Period as shall then be available at reasonably practicable for an annual aggregate policy premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Sage Summit LP), Merger Agreement (GLG Partners, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Company and the Surviving Company Corporation to, (i) until the sixth (6th) anniversary of the date on which the Effective Time shall occur or, if longer, until all claims for indemnification in respect of any claims made prior to the end of such six (6) year period shall have been finally resolved, indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”” ) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and reasonable expenses (including reasonable fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in (x) the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as currently in effect and (y) the indemnification agreements listed on the date of this Agreement or in any agreement in existence as Section 5.9 of the date Company Disclosure Schedule, which shall survive the Transactions and continue in full force and effect in accordance with their respective terms for a period of this Agreement providing for indemnification between the Company and any Indemniteeat least six (6) years. Without limiting the foregoing, ParentParent shall, from and after the Effective TimeTime and until the sixth (6th) anniversary of the date on which the Effective Time shall occur or, shall causeif longer, until all claims for indemnification in respect of any claims made prior to the fullest extent permitted under applicable Lawend of such six (6) year period shall have been finally resolved, cause the memorandum certificate of association incorporation and byeby-laws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Effective Time and until the sixth (6th) anniversary of the date on which the Effective Time shall occur or, if longer, until all claims for indemnification in respect of any claims made prior to the end of such six (6) year period shall have been finally resolved, Parent shall, and shall cause the Company and the Surviving Corporation to, advance any expenses (including reasonable fees and expenses of legal counsel) of any Indemnitee under this Section 5.9 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.9) as amendments may be incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law during such periodLaw.
(b) For At the six-year period commencing immediately after Company’s election, (i) the Company shall obtain prior to the Effective Time, Time “tail” insurance policies with a claims period of at least six (6) years from the Surviving Company shall maintain in effect Effective Time with respect to the directors’ and officers’ liability insurance in amount and scope no less favorable than the existing policy of the Company for claims arising from an insurance carrier with facts or events that occurred on or prior to the same Effective Time at a cost that does not exceed 250% of the annual premium currently paid by the Company for D&O Insurance (as defined below); or better financial strength (ii) Parent will provide, or cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions and indemnification policy with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, (the “D&O Insurance” ) that is no less favorable to such individuals favorable, taken as a whole, than those the existing policy of such policies in effect on the date of this AgreementCompany or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that, if that Parent and the annual premium for such insurance Surviving Corporation shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause not be required to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for pay an aggregate amount not to exceed for the aggregate Maximum Premium for D&O Insurance during such six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as period in excess of 250% of the current policies of directors’ and officers’ liability insurance maintained annual premium currently paid by the Company and its Subsidiaries with respect to matters existing for such insurance; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it Surviving Corporation shall be deemed to satisfy all obligations obligated to obtain insurance pursuant to this Section 6.08(b) and a policy with the Surviving Company shall use its reasonable best efforts to cause greatest coverage available for a cost not exceeding such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderamount.
(c) The provisions of this Section 6.08 5.9 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.9 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.9 applies shall be third party beneficiaries of this Section 6.085.9).
(d) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.9.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect Notwithstanding anything herein to the Company contrary, if any Action (whether arising before, at or after the Effective Time) is made against any Indemnitee on or prior to the sixth anniversary of its Subsidiaries for any the Effective Time, the provisions of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or 5.9 shall continue in substitution for any effect until the final disposition of such claims under such policiesAction.
Appears in 2 contracts
Samples: Merger Agreement (Dynamex Inc), Merger Agreement (Dynamex Inc)
Indemnification and Insurance. (ai) From and after the Effective Time, the Surviving The Company shall, and Parent shall cause to the Surviving Company tomaximum extent permitted by law, (i) indemnify indemnify, defend and hold harmless each individual who at Investor Observer, the Effective Time isInvestor and each of their respective employees, partners, principals, agents, attorneys, accountants, representatives and other Affiliates (collectively, the “Investor Parties”), from and against all costs, expenses, liabilities, claims, judgments, damages and losses, including, without limitation, all reasonable attorneys’ fees, costs and expenses and the cost of any investigation and preparation incurred in connection therewith, incurred in connection with any threatened, pending or at completed action or proceeding, whether civil, criminal, administrative or investigative (collectively, “Liabilities and Costs”), arising out of or in any time prior way related to the Effective Time wasfact that any Investor Party is or was a director, a director officer, employee, advisor or officer other agent of the Company or any subsidiary of the Company, a Subsidiary is or was serving as an observer of the CompanyBoard, or any other Person in which the Company is or any of its Subsidiaries owns any equity interests was serving at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, trustee, agent, observer or agent fiduciary of the Company another corporation, partnership, joint venture, employee benefit plan, trust or such Subsidiary or taken at the request of the Company or such Subsidiary (including other enterprise and, in connection with any Investor Party serving at the request of the Company or as such Subsidiary as a director, officer, employee, trustee, agent, trusteeobserver or fiduciary, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall such Investor Party acted in good faith and in a manner he or she reasonably believed to be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations best interests of the Company and such Subsidiaries to the Indemnitees not in respect violation of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodlaw.
(bii) For Upon request by any Investor Party, and upon receipt of an undertaking by the sixapplicable Investor Party to reimburse the Company if the Investor Party is found by a court of competent jurisdiction in a final, non-year period commencing immediately after appealable judgment to not have been entitled to indemnification (except for amounts paid under the Effective Timenext sentence), the Surviving Company shall maintain advance (within five (5) Business Days of such request) any and all expenses, including, without limitation, any and all reasonable attorneys’ fees, costs and expenses and the fees, costs and expenses of any investigation and preparation incurred in connection with any matter for which such Investor Party is or may be entitled to indemnification hereunder. The Company shall also indemnify each Investor Party from and against any and all Liabilities and Costs incurred in connection with any claim or action brought to enforce such Investor Party’s rights under this Section 2(b), or under Applicable Law or the Company’s articles of incorporation or bylaws now or hereafter in effect relating to indemnification, or for recovery under directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether such Investor Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If, for any reason, the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the Investor Parties harmless from an insurance carrier with all such Liabilities and Costs, then the Company shall promptly contribute to the amount of all such Liabilities and Costs paid or payable by any Investor Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and the Investor, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company’s reimbursement, indemnity and contribution obligations shall be in addition to any liability or other obligation the Company may otherwise have at law or under any other agreement or its organizational or governing documents, and such obligations shall, to the extent permitted by law, extend, upon the same terms, to all Investor Parties. This Section 2(b) shall survive indefinitely after the termination of this Agreement.
(iii) At any time that the Obligations are outstanding and continuing for as long as any claim may be made against any Investor Party during any applicable statute of limitations periods, the Company shall have in place and shall maintain in force and effect one or better financial strength of the Company’s current carrier with respect to more directors’ and officers’ liability insurance covering acts policies providing at least $5,000,000 (or omissions occurring at or prior such other amount as is acceptable to the Effective Time with respect to Indemnitees on terms Investor) in insurance coverage for the Investor and scope with respect to such coveragefor any Investor Party serving as a director, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% observer or officer of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchaseCompany, for an aggregate amount not to exceed the aggregate Maximum Premium claims under federal and state securities laws and other claims for six (6) yearswhich such coverage might extend, a six-year prepaid “tail” policy on under terms and conditions providing at least substantially equivalent benefits generally included in such policies and so long as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior can obtain such a policy under terms reasonably acceptable to the Effective Time, Investor (including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08premium amount).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Equity Rights Agreement (Vintage Capital Group, LLC), Equity Rights Agreement (Caprius Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause (including by providing adequate funding to) the Surviving Company Corporation to, and the Surviving Corporation shall (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and shall also advance expenses as incurred to the fullest extent permitted by applicable law (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating acts or omissions occurring in whole or in part to connection with the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the CompanyMBCA, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, in each case as provided in (x) the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as currently in effect on and (y) the date indemnification agreements listed in Section 5.8(a) of the Company Disclosure Schedule, which shall survive the Transactions and continue in full force and effect in accordance with their respective terms, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification; and provided, further, that any determination required to be made with respect to whether an officer’s or director’s conduct complies with the standards set forth under the MBCA or the Company Charter Documents, the organizational documents of the Company’s Subsidiaries or the indemnification agreements listed in Section 5.8(a) of the Company Disclosure Schedule, as the case may be, shall be made by independent counsel selected by the Surviving Corporation. Parent agrees to consult with independent legal counsel selected by the Indemnitee in connection with any determination required to be made with respect to whether an Indemnitee’s conduct complies with the standards set forth in the MBCA or the Company Charter Documents, the organizational documents of the Company’s Subsidiaries or the indemnification agreements listed in Section 5.8(a) of the Company Disclosure Schedule, as the case may be.
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Agreement Section 5.8, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Parent and the Surviving Corporation shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any agreement jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest; provided that the fewest number of counsels necessary to avoid conflicts of interest shall be used, (ii) the Indemnified Parties will cooperate in existence the defense of any such matter and (iii) Parent and the Surviving Corporation shall not be liable for any settlement effected without their prior written consent; and provided, further, that Parent and the Surviving Corporation shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law.
(c) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall use its reasonable best efforts to cause the Surviving Corporation as of the date Effective Time to obtain and fully pay for “tail” insurance policies (providing only for the Side A coverage for Indemnified Parties where the existing policies also include Side B coverage for the Company) with a claims period of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, at least six years from and after the Effective Time, shall cause, to Time from an insurance carrier with the fullest extent permitted under applicable Law, same or better credit rating as the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees Company’s current insurance carrier with respect to limitation of liabilities of directors directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, advancement “D&O Insurance”) with benefits and levels of expenses and indemnification than are coverage at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend for such policies a premium amount in excess of the amount set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodDisclosure Schedule.
(bd) For If the “tail” insurance described in Section 5.8(c) is not obtained, for the six-year period commencing immediately after the Effective Time, the Surviving Company Parent shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those Persons who are currently (and any additional Persons who at or prior to the Effective Time were or become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no not less favorable to such individuals than those of such policies in effect on the date hereof (or Parent may substitute therefor policies, issued by reputable insurers, of this Agreementat least the same coverage with respect to matters occurring prior to the Effective Time); provided, however, that, if the annual premium aggregate premiums for such insurance shall exceed 300% of the current aggregate annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letterpremium, then Parent shall provide or cause to be provided a policy policies for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of 300% of the Maximum Premium. The Company may prior to the Effective Time purchasecurrent aggregate annual premium and; provided further, for an aggregate amount that any substitution or replacement of existing policies shall not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies result in any gaps or lapses of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries coverage with respect to matters existing facts, events, acts or omissions occurring at or prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(ce) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives, but only after the Effective Time, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (Medco Health Solutions Inc), Merger Agreement (Polymedica Corp)
Indemnification and Insurance. (a) From and after the Effective Time23.1 Kissei shall defend, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time isElixir and its Affiliates and Elixir Sublicensees, and their officers, directors, employees, agents, distributors and suppliers, and their respective successors, assigns, heirs and representatives (collectively, “Elixir Indemnitees”) from and against all liabilities, damages, losses, suits, proceedings, actions, claims, judgments and costs and expenses (including legal fees and expenses) resulting from any Third Party claim made or at any time prior suit brought (collectively, “Losses”) to the Effective Time wasextent the same is arising from or related to:
(a) Kissei’s material breach of any term of this Agreement (including any express representation or warranty made herein),
(b) the negligence, a director recklessness or officer willful misconduct or fraud on the part of the Company, a Subsidiary of the Company, or any other Person in which the Company Kissei or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrativeAffiliates, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision Kissei Licensees or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and their respective officers, advancement of expenses directors, employees, agents, distributors and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Companysuppliers, or any of their respective successors successors, assigns, heirs or assigns representatives with respect to the Compound supplied by Kissei or in the performance of Kissei’s obligations or exercise of Kissei’s rights under this Agreement,
(c) any actual or alleged violation of Law (other than any patent or other intellectual property Laws) in the performance of Kissei’s obligations or exercise of Kissei’s rights under this Agreement,
(d) any product liability claim related to the Compound or Product manufactured, used or sold by any of Kissei or its Affiliates or Kissei Licensees or any of their respective successors, assigns, heirs or representatives. prior to the Effective Date or during the term of this Agreement or after termination or expiration of this * Confidential Treatment Requested Agreement, and any product liability claim related to the Compound arising from manufacturing Compound supplied to Elixir hereunder, including (i) consolidates non conformance of the Compound to the Compound specifications (including those on Exhibit C) and (ii) non manufacture of the Compound according to cGMP, or
(e) any claim of infringement or amalgamates with misappropriation of a Third Party’s patent, copyright, trade secret or merges into trademark right, or any other Person and is not intellectual property right arising from the continuing development, registration, manufacture, marketing, promotion, distribution, importation, offer for sale or surviving company sale or entity other commercialization of such consolidation, amalgamationCompound or Product, or merger chemical agents for making or using the same, by any of Kissei or its Affiliates or Kissei Licensees or any of their respective successors, assigns, heirs or representatives. However, Kissei shall not be required to indemnify any Elixir Indemnitee to the extent that any such claims or suits arose out of or resulted from the negligence, recklessness or willful misconduct or fraud of any Elixir Indemnitees.
23.2 Elixir shall defend, indemnify and hold harmless Kissei or any of its Affiliates, or Kissei Licensees and Former Licensees or any of their respective officers, directors, employees, agents, distributors and suppliers, or any of their respective successors, assigns, heirs or representatives (collectively, “Kissei Indemnitees”) from and against all Losses to the extent the same is arising from:
(a) Elixir’s material breach of any term of this Agreement (including any express representation or warranty made herein),
(b) the negligence, recklessness or willful misconduct or fraud on the part of any Elixir Indemnitee with respect to the Product produced by Elixir or in the performance of Elixir’s obligations or exercise of Elixir’s rights under this Agreement,
(c) any actual or alleged violation of Law (other than any patent or other intellectual property Laws) in the performance of Elixir’s obligations or exercise of Elixir’s rights under this Agreement,
(d) any product liability claim related to the Compound or Product manufactured, used or sold by any Elixir or its Affiliates or Elixir Sublicensees or any of their respective successors, assigns, heirs or representatives during the term of this Agreement or after termination or expiration of this Agreement, unless and to the extent such claim arose out of or resulted from (i) non conformance of the Compound supplied by Kissei to the Compound specifications (including those on Exhibit C) or (ii) transfers non manufacture of the Compound supplied by Kissei or conveys all or substantially all any of its properties and assets Affiliates according to any PersoncGMP, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.or
(e) Nothing in this Agreement is intended touse of any data from any clinical studies conducted by or on behalf of Former Licensees; * Confidential Treatment Requested (f) any claim of infringement or misappropriation of a Third Party’s patent, shall be construed tocopyright, trade secret or trademark right, or shall releaseany other intellectual property right arising from the development, waiveregistration, manufacture, marketing, promotion, distribution, importation, offer for sale or sale or other commercialization of Compound or Product, or impair any rights to directors’ and officers’ insurance claims under any policy that is chemical agents for making or has been in existence with respect to using the Company or same, by any of Elixir or its Subsidiaries for Affiliates or Elixir Sublicensees or any of their respective directorssuccessors, officersassigns, heirs or other employeesrepresentatives. However, it being understood and agreed Elixir shall not be required to indemnify any Kissei Indemnitee to the extent that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesor suits arose out of or resulted from the negligence, recklessness or willful misconduct or fraud of any Kissei Indemnitee.
Appears in 2 contracts
Samples: License Agreement (Elixir Pharmaceuticals, Inc.), License Agreement (Elixir Pharmaceuticals, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Company and the Surviving Company Corporation to, (i) until the sixth (6th) anniversary of the date on which the Effective Time shall occur, indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and reasonable expenses (including reasonable fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in (x) the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as currently in effect and (y) the indemnification agreements listed on the date of this Agreement or in any agreement in existence as Section 5.8 of the date of this Agreement providing for indemnification between Company Disclosure Schedule, which shall survive the Company Transactions and any Indemniteecontinue in full force and effect in accordance with their respective terms. Without limiting the foregoing, ParentParent shall, from and after the Effective TimeTime and until the sixth (6th) anniversary of the date on which the Effective Time shall occur, shall cause, to cause the fullest extent permitted under applicable Law, the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Effective Time and until the sixth (6th) anniversary of the date on which the Effective Time shall occur, Parent shall, and shall cause the Company and the Surviving Corporation to, advance any expenses (including reasonable fees and expenses of legal counsel) of any Indemnitee under this Section 5.8 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.8) as amendments may be incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law during such periodLaw.
(b) For At the six-year period commencing immediately after Parent’s election, either (i) the Company shall obtain prior to the Effective Time, Time “tail” insurance policies with a claims period of at least six (6) years from the Surviving Company shall maintain in effect Effective Time with respect to the directors’ and officers’ liability insurance in amount and scope no less favorable than the existing policy of the Company for claims arising from an insurance carrier with facts or events that occurred on or prior to the same Effective Time at a cost that does not exceed 250% of the annual premium currently paid by the Company for D&O Insurance (as defined below); or better financial strength (ii) Parent will provide, or cause the Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions and indemnification policy with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, (the “D&O Insurance” ) that is no less favorable to such individuals favorable, taken as a whole, than those the existing policy of such policies in effect on the date of this AgreementCompany or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that, if that Parent and the annual premium for such insurance Surviving Corporation shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause not be required to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for pay an aggregate amount not to exceed for the aggregate Maximum Premium for D&O Insurance during such six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as period in excess of 250% of the current policies of directors’ and officers’ liability insurance maintained annual premium currently paid by the Company and its Subsidiaries with respect to matters existing for such insurance; provided, further, that if the annual premiums of such insurance coverage exceed such amount, Parent or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it Surviving Corporation shall be deemed to satisfy all obligations obligated to obtain insurance pursuant to this Section 6.08(b) and a policy with the Surviving Company shall use its reasonable best efforts to cause greatest coverage available for a cost not exceeding such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderamount.
(c) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(d) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect Notwithstanding anything herein to the Company contrary, if any Action (whether arising before, at or after the Effective Time) is made against any Indemnitee on or prior to the sixth anniversary of its Subsidiaries for any the Effective Time, the provisions of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or 5.8 shall continue in substitution for any effect until the final disposition of such claims under such policies.Action
Appears in 2 contracts
Samples: Merger Agreement (Graham Holdings Co), Merger Agreement (SmartPros Ltd.)
Indemnification and Insurance. (a) From Without limiting any additional rights that any director, officer or other employee of the Company may have under any indemnification or other agreement, any Benefit Plan or the Company Certificate or Company By-laws, from and after the Effective Time, Parent and the Surviving Corporation shall, jointly and severally (and Parent shall cause the Surviving Corporation to), indemnify, defend and hold harmless, to the fullest extent authorized or permitted under the DGCL or other applicable Law, each Person who is now, or has been at any time prior to the date of this Agreement or who becomes such prior to the Effective Time, (i) an officer or director of the Company or any of the Company Subsidiaries or (ii) an employee of the Company or any of the Company Subsidiaries providing services to or for such director or officer in connection with this Agreement or any of the Transactions (such officers, directors and employees, individually, an “Indemnified Party,” and collectively, the “Indemnified Parties”) (in such Person’s capacity as such and not as stockholders or optionholders of the Company) against any and all losses, claims, damages, costs, expenses (including attorneys’ fees and disbursements), fines, liabilities and judgments and amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld or delayed) (collectively, “Indemnified Liabilities”) incurred in connection with any pending, threatened or completed claim, action, suit, proceeding or investigation (each, a “Proceeding”) arising out of or pertaining to (i) the fact that such Person is or was an officer, director, employee, fiduciary or agent of the Company or any of the Company Subsidiaries or (ii) matters occurring or existing at or prior to the Effective Time (including acts or omissions occurring in connection with this Agreement and the Transactions), whether asserted or claimed prior to, at or after, the Effective Time. In the event any claim for Indemnified Liabilities is asserted or made by an Indemnified Party, any determination required to be made with respect to whether such Indemnified Party’s conduct complies with the standards set forth under the DGCL or other applicable Law shall be made by independent legal counsel selected by such Indemnified Party and reasonably acceptable to the Surviving Corporation. Parent shall, or shall cause the Surviving Corporation to, promptly advance all reasonable out-of-pocket expenses of each Indemnified Party in connection with any Proceeding as such expenses (including attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor (accompanied by invoices or other relevant documentation), provided (if and to the extent required by the DGCL or other applicable Law) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law with respect to such Proceeding. In the event any Proceeding is brought against any Indemnified Party, Parent and the Surviving Corporation shall each use all reasonable best efforts to assist in the vigorous defense of such matter, provided that neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Proceeding (and in which indemnification could be sought by such Indemnified Party hereunder) without the prior written consent of such Indemnified Party if and to the extent the claimant seeks any non-monetary relief from such Indemnified Party.
(b) All rights to indemnification existing in favor of, and all exculpations and limitations of the personal Liability of, the directors, officers, employees, fiduciaries and agents of any of the Company and the Company Subsidiaries in the Company Certificate or Company By-Laws (or comparable organizational documents of the Company Subsidiaries) as in effect as of the Effective Time with respect to matters occurring at or prior to the Effective Time, including the Merger and the other Transactions, shall continue in full force and effect for a period of not less than six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims asserted or made within such period shall continue until the final disposition of such claim.
(c) For a period of six (6) years after the Effective Time, the Surviving Corporation shall, and shall cause its Subsidiaries to, and Parent shall cause the Surviving Corporation and its Subsidiaries to, maintain in effect the current directors’ and officers’ liability insurance policies maintained by any of the Company and the Company Subsidiaries for the benefit of those Persons who are covered by such policies at the date of this Agreement or the Effective Time with respect to claims arising in whole or in part from matters occurring or allegedly occurring prior to the Effective Time (provided that the Surviving Corporation and its Subsidiaries may substitute therefor policies of at least the same coverage containing terms and conditions that are at least as beneficial to the beneficiaries of the current policies and with reputable carriers having a rating comparable to the Company’s current carrier); provided, however, that each of Parent and the Surviving Corporation and its Subsidiaries shall, and Parent shall cause the Surviving Company Corporation and its Subsidiaries to, (i) indemnify first use its reasonable best efforts to obtain a “tail” policy on substantially the same terms and hold harmless each individual who at the Effective Time is, conditions for claims arising out of acts or at any time conduct occurring on or prior to the Effective Time wasand effective for claims asserted during the full six (6)-year period referred to above, and only if Parent and the Surviving Corporation and its Subsidiaries are unable, after exerting their reasonable best efforts, to obtain such a “tail” policy, then Parent or the Surviving Corporation and its Subsidiaries will be required to obtain such coverage from such carriers in annual policies; and, provided, further that (i) if the existing policies expire or are terminated or canceled during such six (6)- year period, each of Parent and the Surviving Corporation and its Subsidiaries shall, and Parent shall cause the Surviving Corporation and its Subsidiaries to, use its reasonable best efforts to obtain substantially similar policies with reputable carriers having a rating comparable to the Company’s current carrier, (ii) Parent or the Surviving Corporation and its Subsidiaries, as the case may be, shall not be required to spend as an annual premium therefor an amount in excess of three hundred percent (300%) of the annual premium therefor as of the date of this Agreement and (iii) if, during such six (6)-year period, such insurance coverage cannot be obtained at all or can be obtained only for an amount in excess of three hundred percent (300%) of the current annual premium therefor, Parent or the Surviving Corporation and its Subsidiaries, as the case may be, shall use all reasonable best efforts to cause to be obtained as much directors’ and officers’ liability insurance coverage as can be obtained for an amount equal to three hundred percent (300%) of the current annual premium therefor, on terms and conditions substantially similar to the Company’s and the Company Subsidiaries’ existing directors’ and officers’ liability insurance.
(d) Notwithstanding the foregoing, prior to the Effective Time the Company shall be permitted to purchase prepaid “tail” policies in favor of the individuals referred to in Section 6.7(c) with respect to the matters described therein (provided that the annual premium therefor shall not exceed three hundred percent (300%) of the annual premium therefor as of the date of this Agreement). If and to the extent such policies have been obtained prior to the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain such policies in effect and continue to honor the obligations thereunder.
(e) Parent shall, and shall cause the Surviving Corporation to, honor and perform in accordance with their terms all indemnification agreements identified on Section 4.13 of the Company Disclosure Schedule and in effect as of the date of this Agreement between the Company, on the one hand, and any director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodother hand.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cf) The provisions of this Section 6.08 6.7 (x) are (i) intended to be for the benefit of, and shall be enforceable by, each IndemniteeIndemnified Party, his or her heirs, heirs and his or her Representatives personal representatives, (y) shall be binding on Parent and the Surviving Corporation and their respective successors and assigns and (iiz) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(dg) In the event that Parent, Parent or the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of in such consolidationconsolidation or merger, amalgamation, or merger or (ii) transfers or conveys all or substantially all a majority of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall Corporation, as the case may be (and such Person’s ultimate parent entity, if applicable), assume all of the obligations thereof set forth in this Section 6.086.7.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Samples: Merger Agreement (COHOES FASHIONS of CRANSTON, Inc.), Merger Agreement (Burlington Coat Factory Warehouse Corp)
Indemnification and Insurance. (a) From Parent and after Merger Sub agree that all rights to indemnification by the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless now existing in favor of each individual person who at the Effective Time isis now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time wasan officer, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such any Company Subsidiary or taken at the request who acts as a fiduciary under any of the Company Employee Benefit Plans (each an “Indemnified Party”) as provided in the Company’s certificate of incorporation or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan))bylaws, in each case under clause (A) or (B), atas in effect on the date of this Agreement, or at pursuant to any time prior toother agreements in effect on the date hereof, copies of which have been provided to Parent, including provisions relating to the advancement of expenses incurred in the defense of any action or suit, shall survive the Merger and shall remain in full force and effect in accordance with their terms.
(b) For ten years after the Effective Time (including any Action relating in whole or in part subject to the Transactions or relating to the enforcement last sentence of this provision or any other indemnification or advancement right of any IndemniteeSection 5.9(b)), to the fullest extent permitted under applicable Lawlaw, Parent shall, and shall cause the Surviving Corporation to, and the Surviving Corporation shall, indemnify, defend and hold harmless each Indemnified Party who on or prior to the Effective Time were officers or directors of the Company or the Company Subsidiaries (collectively, the “D&O Indemnitees”) against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time, and will reimburse each D&O Indemnitee to the fullest extent permitted under applicable law for any legal or other expenses reasonably incurred by such D&O Indemnitee in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred; provided that no Indemnitee nothing herein shall be indemnified against impair any liability that by virtue rights to indemnification of any rule Indemnified Party referred to in clause (a) above. Such rights shall not be amended, or otherwise modified in any manner that would adversely affect the rights of law attaches to the D&O Indemnitees, unless such Indemnitee in respect modification is required by law. In the event notice of any fraud claim for indemnification or dishonesty reimbursement of which expenses under this Section 5.9(b) shall have been made within the ten-year period referred to the first sentence of this Section 5.9(b) and such Indemnitee claim has not been finally resolved by the expiration of such ten-year period, the obligations set forth in this Section 5.9(b) shall survive until such claim is guilty finally resolved.
(c) Parent shall cause the Surviving Corporation to maintain the Company’s officers’ and directors’ liability insurance policies, in relation effect on the date of this Agreement (the “D&O Insurance”), for a period of not less than six years after the Effective Time, with no less coverage and amounts and containing terms no less advantageous to the Company’s directors and officers currently covered by policies in effect on the date hereof, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries but only to the Indemnitees in respect of indemnification and exculpation from liabilities for acts extent related to actions or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for D&O Insurance expires, is terminated or is canceled during such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as period, Parent shall, or shall cause the current policies of directorsSurviving Corporation to, obtain officers’ and officersdirectors’ liability insurance maintained covering such acts or omissions with respect to each such Person of at least the same coverage and amounts and containing terms no less advantageous to the Company’s directors and officers currently covered by the Company D&O Insurance); provided, that (i) the Surviving Corporation may substitute therefor policies for the exclusive benefit of those Persons who are currently covered by the D&O Insurance from a financially sound and its Subsidiaries nationally reputable carrier of at least the same coverage and amounts containing terms no less advantageous to such Persons and (ii) such substitution shall not result in gaps or lapses of coverage with respect to matters existing occurring at or occurring prior to the Effective Time; provided, including further, that in no event shall Parent or the TransactionsSurviving Corporation be required to expend more than an amount per year equal to 200% of current annual premiums paid by the Company for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Parent and the Surviving Corporation shall procure and maintain for such six-year period as much coverage as reasonably practicable for the Maximum Amount. If such prepaid Parent shall have the right to cause coverage to be extended under the Company’s D&O Insurance by obtaining and causing to be maintained a six-year “tail” policy has been obtained of at least the same coverage and amounts and containing terms no less advantageous to the Company’s directors and officers currently covered by the D&O Insurance than the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term’s existing D&O Insurance, and to honor all of its obligations thereunder.
(c) The such “tail” policy shall satisfy the provisions of this Section 6.08 are 5.9(c) for so long as it remains in effect for such six-year period.
(id) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.9 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect the rights of any D&O Indemnitee to whom this Section 6.08 applies, unless (x) 5.9 applies without the consent of such termination or modification is required by applicable Law or (y) the affected D&O Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the D&O Indemnitees to whom this Section 6.08 5.9 applies shall be third party beneficiaries of this Section 6.085.9, each of whom may enforce the provisions of this Section 5.9).
(de) In the event that Parent, If Parent or the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Corporation, as the case may, be shall assume all of the obligations thereof set forth in this Section 6.085.9.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification and Insurance. (a) From The By-Laws and after Certificate of Incorporation of the Surviving Corporation shall contain the provisions with respect to indemnification set forth in the By-Laws and Certificate of Incorporation of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time, Time in any manner that would adversely affect the Surviving Company shall, and Parent shall cause rights thereunder as of the Surviving Company to, (i) indemnify and hold harmless each individual Effective Time of individuals who at the Effective Time iswere directors, officers, employees or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer agents of the Company or its Subsidiaries, unless such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, modification is required after the Effective Time by law.
(including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)b) The Surviving Corporation shall, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue law or under the Surviving Corporation's Certificate of any rule of law attaches to such Indemnitee in respect of any fraud Incorporation or dishonesty of which such Indemnitee is guilty in relation to the CompanyBy-Laws, as finally determined by the Supreme Court of Bermuda; indemnify and (ii) assume all obligations hold harmless each present and former director, officer, employee or agent of the Company or any of its subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and such Subsidiaries amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (collectively, "Actions"), (x) arising out of or pertaining to the Indemnitees in transactions contemplated by this Agreement, or (y) otherwise with respect of indemnification and exculpation from liabilities for to any acts or omissions occurring at or prior to the Effective Time Time, in each case to the same extent (and rights including any provision for the advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents Company's Certificate of such Subsidiaries Incorporation or ByLaws or any applicable contract or agreement as in effect on the date of this Agreement or hereof, in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified each case for a period of six years after the Effective Time; provided, however, that, in the event that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. In the event of any such Action (6whether arising before or after the Effective Time), the Indemnified Parties shall promptly notify the Surviving Corporation in writing, but the failure to so notify shall not relieve the Surviving Corporation of its obligations under this Section 5.7(b) years from except to the extent it is materially prejudiced by such failure, and the Surviving Corporation shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Parties. The Indemnified Parties shall have the right to employ separate counsel in any such Action and to participate in (but not control) the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Parties unless (a) the Surviving Corporation has agreed to pay such fees and expenses, (b) the Surviving Corporation shall have failed to assume the defense of such Action or (c) the named parties to any such Action (including any impleaded parties) include both the Surviving Corporation and the Indemnified Parties and such Indemnified Parties shall have been reasonably advised by counsel that there may be one or more legal defenses available to the Indemnified Parties which are in conflict with those available to the Surviving Corporation. In the event such Indemnified Parties employ separate counsel at the expense of the Surviving Corporation pursuant to clauses (b) or (c) of the previous sentence, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time shall be reasonably satisfactory to the Surviving Corporation; (ii) the Indemnified Parties as a group may retain only one law firm to represent them in each applicable jurisdiction with respect to any single Action unless there is, under applicable standards of professional conduct, a manner that would adversely affect conflict on any significant issue between the rights thereunder positions of the Indemniteesany two or more Indemnified Parties, except as amendments in which case each Indemnified Person with respect to whom such a conflict exists (or group of such Indemnified Persons who among them have no such conflict) may be required by retain one separate law firm in each applicable Law during such period.
jurisdiction; (biii) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ pay the reasonable fees and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those expenses of such policies counsel, promptly after statements therefor are received; and (iv) the Surviving Corporation will cooperate in effect on the date defense of this Agreement; provided, however, that, if the annual premium for any such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum PremiumAction. The Company may prior to the Effective Time purchase, Surviving Corporation shall not be liable for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies any settlement of directors’ and officers’ liability insurance maintained by the Company and any such Action effected without its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderwritten consent.
(c) The provisions Surviving Corporation shall honor and fulfill in all respects the obligations of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights Company pursuant to indemnification or contribution that any agreements and employment agreements (the employee parties under such individual may have under agreements being referred to as the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent "Officer Employees") with the Company's directors and officers existing on the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)date hereof.
(d) In For a period of six years after the event that ParentEffective Time, Parent shall cause the Surviving Corporation to maintain in effect, if available, directors' and officers' liability insurance covering those Persons who are currently covered by the Company's directors' and officers' liability insurance policy (a correct and complete copy of which has been made available to Parent) on terms comparable to those now applicable to directors and officers of the Company; provided, or any however, that in no event shall the Surviving Corporation be required to expend in excess of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person 300% of the annual premium currently paid by the Company for such coverage; and is not provided further, that if the continuing or surviving company or entity of premium for such consolidationcoverage exceeds such amount, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Corporation shall assume all purchase a policy with the greatest coverage available for such 300% of the obligations thereof set forth in this Section 6.08such annual premium.
(e) Nothing in The provisions of this Agreement Section 5.7 shall survive the consummation of the Merger at the Effective Time, is intended toto benefit the Company, the Surviving Corporation, the Indemnified Parties and the Officer Employees, shall be construed to, or binding on all successors and assigns of the Surviving Corporation and shall release, waive, or impair any rights to directors’ be enforceable by the Indemnified Parties and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesOfficer Employees.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Company and the Surviving Company Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “"Indemnitee” " and, collectively, the “"Indemnitees”") with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action or Proceeding (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s 's capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, employee or fiduciary agent of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to connection with the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeMerger), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in (x) the Company Organizational Charter Documents and the Organizational Documents of such Subsidiaries as currently in effect on and (y) the indemnification agreements with any of the Indemnitees provided to Parent prior to the date of this Agreement or hereof, which shall survive the Merger and continue in any agreement full force and effect in existence as of the date of this Agreement providing for indemnification between the Company and any Indemniteeaccordance with their respective terms. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to cause the fullest extent permitted under applicable Law, the memorandum articles of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Effective Time, Parent shall, and shall cause the Company and the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 4.9 (including in connection with enforcing the indemnity and other obligations provided for in this Section 4.9) as amendments may be incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law during such periodLaw.
(b) Any Indemnitee wishing to claim indemnification under this Section 4.9, upon learning of any such Action or Proceeding, shall notify Parent, the Company and the Surviving Corporation, but the failure to so notify Parent, the Company and the Surviving Corporation shall not relieve such party from any liability which it may have under this paragraph except to the extent such failure materially prejudices Parent, the Company and/or the Surviving Corporation. Parent shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 4.9 (each, a "Claim") with counsel selected by the Parent, which counsel shall be reasonably acceptable to the Indemnitee; provided, however, that Indemnitee shall be permitted to participate in the defense of such Claim at its own expense; provided, further, that such Indemnitee shall be entitled to participate in any such defense with separate counsel at the expense of Parent if (i) so requested by Parent to participate or (ii) in the reasonable opinion of counsel to Indemnitee, a conflict or potential conflict exists between Parent and Indemnitee that would make such separate representation advisable; and provided, further, that Parent shall not be required to pay for more than one such counsel for all Indemnitees in connection with any such claim. Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective TimeTime (and for so long thereafter as any Claims thereunder are being adjudicated), the Surviving Company Parent shall maintain in effect the Company's current directors’ ' and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ ' liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the Company's directors' and officers' liability insurance policy on terms and scope with respect to such coverage, and in amount, no not less favorable in any material respect in the aggregate to such individuals than those of such policies policy in effect on the date hereof (or Parent may substitute therefor policies, issued by reputable insurers, of this Agreementat least the same coverage with respect to matters occurring at or prior to the Effective Time); provided, however, that, if the aggregate annual premium premiums for such insurance shall exceed 300% of the current aggregate annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letterpremium, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of 300% of the Maximum Premium. The current aggregate annual premium (but in no event shall such coverage be less than the directors' and officers' liability insurance coverage then provided by Parent to its directors and officers); and provided, further, that the Company may prior elect to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring purchase prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts Parent may elect to cause such policy the Company to purchase at or after the Effective Time, in lieu of the foregoing insurance, a directors' and officers' liability insurance "tail" or "runoff" insurance program to be maintained in full force effect until the end of such six-year period (and effect, for its full term, so long thereafter as any Claims thereunder are being adjudicated) with respect to acts or omissions occurring at or prior to the Effective Time (such coverage to be on terms and conditions no less favorable to honor all of its obligations thereunderthe covered directors and officers than such coverage existing on the date hereof).
(cd) The provisions of this Section 6.08 4.9 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 4.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 4.9 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 4.9 applies shall be third third-party beneficiaries of this Section 6.084.9).
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.084.9.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Mc Shipping Inc)
Indemnification and Insurance. (a) From and after the Effective TimeThe Company shall defend, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time isResearchers, or at any time prior to the Effective Time wasHadasit, a director or officer of the CompanyHMO, a Subsidiary of the Companyand their respective officers, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company employees, and agents (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, hereinafter collectively, the “Indemnitees”) from and against any loss, damage, liability and expense (including legal fees), charges, damages and/or product liability claim (all of the foregoing, collectively “Loss”) which may result from the exercise of the License and/or use or exploitation of the Licensed Technology and/or the Materials by the Company, its Affiliates or any of its subcontractors, Distributors or Sublicensees provided, however that:
12.1. the Company’s liability under this Section 12 shall be proportionately reduced to the extent the Loss was caused or increased by the negligence or willful misconduct of an Indemnitee, or by any act or omission by an Indemnitee in violation of applicable laws and regulations or in breach of this Agreement;
12.2. the Company is notified promptly in writing of any claim or action for which indemnity is or may be sought from the Company pursuant to this Section 12, such notice to set out the details of such complaint or claim;
12.3. the Indemnitee has not made any admissions or taken any action or proceeding relating to such claim or action which may prejudice the defense thereof, or compromised or settled such claim or action, without the prior written consent of the Company;
12.4. the Company shall have sole control over the defense with counsel of its own choice and the right to settle or compromise such claim or action, within its sole discretion provided that any settlement of such action that adversely affects the interests of Hadasit or involves any act or omission by Hadasit shall be subject to Hadasit’s prior written approval, which shall not be unreasonably withheld or delayed; and
12.5. Hadasit and HMO shall cooperate fully, and shall cause the Researchers and the employees and agents of Hadasit and HMO respectively, to cooperate fully with the Company and its legal representatives, in the investigation and defense of such claim or action, including the provision of such records, information and testimony, such witnesses and the attendance of such conferences, discovery proceedings, hearings, trials and appeals as may reasonably be requested by the Company in connection therewith, at the Company’s sole expense (except in the case that representation of both Hadasit and the Company by the same counsel will impose a potential conflict of interests, in such case the Company will cover Hadasit’s out-of-pocket counsel expenses).
12.6. The Indemnitee shall be entitled, at its discretion, to engage separate legal counsel to represent such Indemnitee with respect to all claimsany such claim or action, liabilitiesat its sole expense.
12.7. Neither Party shall be liable to the other Party for any special, lossespunitive, damagesindirect, judgmentsincidental or consequential damages of any kind, finesincluding lost profits, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request this Agreement, even if such Party is advised of the Company or such Subsidiary as a directorpossibility thereof.
12.8. During the Term, officerCell Cure shall maintain, employeeat its cost, agent, trustee, or fiduciary of another Person (including any employee benefit plan))insurance against legal liability and other risks associated with its activities and obligations under this Agreement, in each such amounts which in any case shall not be less than $ 4,000,000 (four million dollars) subject to such deductibles and on such terms as are customary for a company such as Cell Cure for the activities to be conducted by it under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted Agreement. The named insured under applicable Law; provided that no Indemnitee such insurances shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, the inventors, the Scientists, Hadasit and HMO and the beneficiaries thereof shall include also the respective employees, officers and directors of Hadasit and HMO. The policy or policies so issued shall include a “cross-liability” provision pursuant to which the insurance is deemed to be separate insurance for each named insured (without right of subrogation as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations against any of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have insured under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Companypolicy, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidationrepresentatives, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directorsemployees, officers, directors or other employees, it being understood anyone in their name) and agreed shall further provide that the indemnification provided for insurer will be obliged to notify each insured in this Section 6.08 is not prior to writing at least 30 (thirty) days in advance of the expiry or in substitution for any cancellation of the policy or policies. Cell Cure shall furnish Hadasit with evidence of such claims under such policiesinsurance at Hadasit’s request.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time16.1 SB shall defend, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time isMPI, its AFFILIATES, and its and their respective officers, directors, employees, agents, successors and assigns from any loss, damage, or at liability, including reasonable attorney's fees, resulting from any time prior to the Effective Time wasclaim, a director complaint, suit, proceeding or officer cause of the Company, a Subsidiary of the Company, or any other Person in which the Company or action against any of its Subsidiaries owns them alleging physical or other injury,
(a) SB shall not be obligated under this Paragraph if the liability, if any, would arise by operation of law in the absence of any equity interests at negligence on the request part of SB or if it is shown by evidence acceptable in a court of law having jurisdiction over the Company subject matter and meeting the appropriate degree of proof for such action, that the injury was the result of (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (Ai) the fact that an Indemnitee is negligence or was a director or officer willful misconduct of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, any employee or agent of the Company MPI, its AFFILIATE, its permitted sublicensee, its permitted distributor or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a directorits contractor, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations the breach of the Company and such Subsidiaries any warranty or representation made by MPI in this AGREEMENT, (iii) a patent infringement action brought by a THIRD PARTY related to the Indemnitees in respect SB's exercise of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and its rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of under this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealedAGREEMENT, or otherwise modified for (iv) the alleged release or threat of release of a period hazardous substance at either: (a) the place of six manufacture of PRODUCT, or (6b) years from the Effective Time in a manner that would adversely affect place at which any waste, including but not limited to any hazardous waste, generated at the rights thereunder time of the Indemniteesmanufacture of PRODUCT has been treated, except as amendments may be required by applicable Law during such period.stored or disposed;
(b) For SB shall have no obligation under this Paragraph unless MPI (i) gives SB prompt written notice of any claim or lawsuit or other action for which it seeks to be indemnified under this AGREEMENT, (ii) SB is granted full authority and control over the six-year period commencing immediately after the Effective Timedefense, the Surviving Company shall maintain including settlement, against such claim or lawsuit or other action, and (iii) MPI cooperates fully with SB and its agents in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength defense of the Company’s current carrier with respect claims or lawsuit or other action; and
(c) MPI shall have the right to directors’ and officers’ liability insurance covering acts participate in the defense of any such claim, complaint, suit, proceeding or omissions occurring cause of action referred to in this Paragraph utilizing attorneys of its choice, at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverageits own expense, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, thatthat SB shall have full authority and control to handle any such claim, complaint, suit, proceeding or cause of action, including any settlement or other disposition thereof, for which MPI seeks indemnification under this Paragraph.
16.2 MPI shall defend, indemnify and hold harmless SB, its AFFILIATES, and its and their officers, directors, employees, agents, successors and assigns from any loss, damage, or liability, including reasonable attorney's fees, resulting from any claim, complaint, suit, proceeding or cause of action against any of them alleging physical or other injury, including [Confidential Treatment requested for redacted portions of document.] Page 47 51 death, rising out of (a) the administration, utilization and/or ingestion of PRODUCT manufactured, sold or otherwise provided to the injured party by MPI, its AFFILIATE, its permitted licensee, its permitted distributor, or its contractor, (b) any misrepresentation or breach of any warranty or representation of MPI contained in this AGREEMENT or in any exhibit or schedule hereto, or in any other statement, certificate or document furnished or to be furnished to SB pursuant hereto or in connection with the transactions contemplated hereby provided, (c) any patent infringement action brought against SB, its AFFILIATES or its subdistributors by a THIRD PARTY related to SB's exercise of its rights under this AGREEMENT, or (d) the alleged release or threat of release of a hazardous substance at either: (i) the place of manufacture of PRODUCT or (ii) the place at which any waste, including but not limited to any hazardous waste, generated at the time of manufacture of PRODUCT has been treated, stored or disposed, provided:
(a) MPI shall not be obligated under this Paragraph if it is shown by evidence acceptable in a court of law having jurisdiction over the annual premium subject matter and meeting the appropriate degree of proof for such insurance shall exceed 300% action, that the injury was the result of the current annual premium negligence or willful misconduct of any employee or agent of SB or the breach of any warranty or representation made by SB in this AGREEMENT;
(b) MPI shall have no obligation under this Paragraph unless SB (i) gives MPI prompt written notice of any claim or lawsuit or other action for which it seeks to be indemnified under this AGREEMENT, (ii) MPI is granted full authority and control over the defense, including settlement, against such 300% thresholdclaim or lawsuit or other action, the “Maximum Premium”), which Maximum Premium is set forth and (iii) SB cooperates fully with MPI and its agents in Section 6.08(b) defense of the Company Disclosure Letter, then Parent shall provide claims or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing lawsuit or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.other action; and
(c) The provisions SB shall have the right to participate in the defense of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may claim, complaint, suit, proceeding or cause of action referred to in this Paragraph utilizing attorneys of its choice, at its own expense, provided, however, that MPI shall have under the Company Organizational Documentsfull authority and control to handle any such claim, by Contractcomplaint, suit, proceeding or otherwise. The obligations cause of Parent and the Surviving Company action, including any settlement or other disposition thereof, for which SB seeks indemnification under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Paragraph.
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Development, Supply and Distribution Agreement (Magainin Pharmaceuticals Inc)
Indemnification and Insurance. (a) From and after the Acceptance Date and until the Effective Time, the Surviving Company shall, and Parent shall cause the Company to, and from and after the Effective Time, Parent shall, and shall cause the Surviving Company Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, employee or fiduciary agent of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating acts or omissions occurring in whole or in part to connection with the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents Company’s articles of incorporation and bylaws and the Organizational Documents organizational documents of such Subsidiaries Subsidiaries, in each case, as currently in effect, which shall survive the Transactions and continue in full force and effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemniteeaccordance with their respective terms. Without limiting the foregoing, Parentfrom and after the Acceptance Date and until the Effective Time, the Company shall, and Parent shall cause the Company to, and from and after the Effective Time, Parent shall, and shall causecause the Surviving Corporation to, to cause the fullest extent permitted under applicable Law, the memorandum articles of association incorporation and byeby-laws of the Surviving Company Corporation (or any successor) to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational DocumentsCompany’s articles of incorporation and bylaws, which provisions shall not be be, except as required by applicable Law, amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except subject to Section 6.10(b), from and after the Acceptance Date and until the Effective Time, the Company shall, and Parent shall cause the Company to, and from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, promptly advance any expenses (including fees and expenses of legal counsel) of any Indemnitee incurred in connection with matters for which this Section 6.10 may apply (including in connection with enforcing the indemnity and other obligations provided for in this Section 6.10) as amendments may be incurred to the fullest extent permitted under applicable Law, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law during Law. Unless Parent and the Surviving Corporation otherwise determine that the Indemnitee’s conduct complied with such periodapplicable standards, any determination required to be made with respect to whether an Indemnitee’s conduct complies with the standards set forth under applicable Law, the Company’s articles of incorporation or bylaws, the organizational documents of the Company’s Subsidiaries or the articles of incorporation or bylaws of the Surviving Corporation, as the case may be, shall be made in the manner described in Section 6 of Article VI of the Company's articles of incorporation as in effect on the date hereof; provided, however, that with regard to acts or omissions of a Continuing Indemnitee occurring after the Acceptance Date and prior to the Effective Time, any determination as to whether the applicable standard of conduct was met shall be made by special legal counsel agreed upon by the Company's Board of Directors (excluding the Continuing Indemnitee) and the Continuing Indemnitee, unless Parent and the Surviving Corporation otherwise determine that the Continuing Indemnitee’s conduct complied with such applicable standards. If the Company's Board of Directors (excluding the Continuing Indemnitee) and the Continuing Indemnitee are unable to agree on such special legal counsel the Company's Board of Directors (excluding the Continuing Indemnitee) and the Continuing Indemnitee each shall select a nominee, and the nominees shall select such special legal counsel.
(b) For The Indemnitees may retain counsel reasonably satisfactory to them after consultation with the six-year period commencing immediately Company (if after the Acceptance Date and prior to the Effective Time), and Parent (if on or after the Effective Time); provided, however, that (w) the Company (if after the Acceptance Date and prior to the Effective Time) or Parent or the Surviving Corporation (if on or after the Effective Time) shall have the right to assume the defense thereof (provided the Company or Parent and the Surviving Corporation, as applicable, each confirm in writing to the Indemnitee their obligations to indemnify such party), and upon such assumption, the Company or Parent, as applicable, shall not be liable to any Indemnitee, and shall not be obligated to advance any expenses to any Indemnitee pursuant to Section 6.10(a), for any legal expenses of other counsel or any other expenses incurred by any Indemnitee in connection with the defense thereof, except that if the Company or Parent and the Surviving Corporation, as applicable, elect not to assume such defense or counsel for the Indemnitees reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Company or Parent or the Surviving Corporation, as applicable, on the one hand, and the Indemnitees, on the other hand, the Indemnitees may retain counsel reasonably satisfactory to them after consultation with the Company or Parent, as applicable, and the Company or Parent, as applicable, shall pay the reasonable fees and expenses of such counsel for the Indemnitees; provided that in such case (x) the Company or Parent and the Surviving Corporation, as applicable, shall be obligated pursuant to this Section 6.10 to pay for only one firm or counsel for all Indemnified Parties, unless the proposed counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues that raise conflicts of interest among such parties, in which case the Company or Parent, as applicable, shall pay the reasonable fees and expenses of additional counsel to the extent necessary to avoid such conflict and (y) the Company or Parent and the Surviving Corporation, as applicable, shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed). Any Indemnitee wishing to claim indemnification under this Section 6.10, upon learning of any claim or proceeding relating to any acts or omissions covered under this Section 6.10, shall notify the Company (if after the Acceptance Date and prior to the Effective Time), or Parent and the Surviving Corporation (if on or after the Effective Time) thereof, provided, that the failure to so notify shall not affect the obligations of the Company or Parent, as applicable, under this Section 6.10, except to the extent such failure to notify materially prejudices the Company or Parent or the Surviving Corporation, as applicable.
(c) By no later than the Acceptance Date, the Company shall maintain in effect obtain and fully pay (up to a maximum cost of 300% of the current annual premium paid by the Company and its Subsidiaries for their existing directors’ and officers’ liability insurance from an insurance carrier with coverage in the same or better financial strength aggregate) for a tail policy of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering (with a policy limit and coverage no greater than such existing directors’ and officers’ liability insurance coverage) in respect of acts or omissions occurring at prior to the Acceptance Date (and with respect to Continuing Indemnitees, in respect of acts or omissions occurring prior to the Effective Time Time) covering each Indemnitee for a period of six years following the Acceptance Date (and with respect to Continuing Indemnitees, six years following the Effective Time) with an insurance carrier nationally recognized in the United States of America; provided that the Company shall give Parent a reasonable opportunity to participate in selection of such tail policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation, to maintain such tail policy. In the event that any Indemnitee is entitled to coverage under an directors’ and officers’ liability insurance policy pursuant to this Section 6.10(c) and such policy has lapsed, terminated, been repudiated or is otherwise in breach or default as a result of Parent’s, the Surviving Corporation’s or any of their Affiliates’ failure to maintain and fulfill its obligations pursuant to such policy, Parent shall, and shall cause the Surviving Corporation to, pay to the Indemnitee such amounts and provide any other coverage or benefits as the Indemnitee shall have been otherwise entitled to have received pursuant to such policy. Parent agrees that, should the Surviving Corporation fail to comply with the obligations of this Section 6.10(c), Parent shall be responsible therefor. For those Indemnitees who are directors or officers of the Company on the Acceptance Date and who continue to be directors or officers of the Company at any time during the period from the Acceptance Date until the Effective Time (“Continuing Indemnitees”), the tail policy described above shall provide, or at the Company’s election Parent shall provide, such Continuing Indemnitees with directors’ and officers’ liability insurance coverage in respect of acts or omissions occurring on or after the Acceptance Date and prior to the Effective Time, with a carrier of national recognition, and having terms and scope at least as favorable to each such Indemnitee with respect to such coverage, matters as those provided to each such Indemnitee under the Company’s directors’ and in amount, no less favorable to such individuals than those of such policies officers’ liability insurance in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(cd) The provisions of this Section 6.08 6.10 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of the Company, Parent and the Surviving Company Corporation under this Section 6.08 6.10 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 6.10 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 6.10 applies shall be third party beneficiaries of this Section 6.08)6.10) .
(de) In the event that the Company, Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company, Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.086.10.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Shire PLC)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or of a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that which by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is may be guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum of association and bye-laws of the Surviving Company and such Subsidiaries to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational DocumentsDocuments and the organizational documents of such Subsidiaries, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after from the Effective Time, Parent shall cause the Surviving Company shall maintain to advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.08 (including in effect directors’ connection with enforcing the indemnity and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect other obligations referred to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior in this Section 5.08) as incurred to the Effective Time with respect fullest extent permitted under applicable Law; provided that the individual to Indemnitees on terms and scope with respect whom expenses are advanced provides an undertaking to repay such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, advances if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed determined that such person is not entitled to satisfy all obligations to obtain insurance be indemnified pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.085.08(a).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Endurance Specialty Holdings LTD)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company Corporation to, to the fullest extent permitted by applicable Laws, as now or hereafter in effect, and consistent with all the rights and obligations set forth in Article 8 of and the Appendix to the Bylaws and Sections 8.05 and 8.06 of the Articles of Incorporation, each as in effect as of the date hereof: (i) indemnify and hold harmless each individual person who is at the date hereof, was previously or during the period from the date hereof through the Effective Time iswill be, serving as a director, officer, employee or at any time prior to the Effective Time was, a director or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests and each Person who is at the request of date hereof, was previously or during the Company (eachperiod from the date hereof through the Effective Time will be, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary any of its Subsidiaries as a director, officer, employee, agent, trusteepartner, trustee or fiduciary in another authorized capacity of or for another Person corporation, unincorporated association, business trust, estate, partnership, joint venture, individual, trust, employee benefit plan or other legal entity, whether or not organized or formed for profit (collectively, the “Covered Persons”) in connection with any D&O Claim and any losses, claims, damages, liabilities, Claim Expenses, judgments, fines, penalties and amounts paid in settlement (including any employee benefit plan))all interest, assessments and other charges paid or payable in each case under clause (A) connection with or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud thereof) relating to or dishonesty of which resulting from such Indemnitee is guilty in relation D&O Claim (without prejudice to the CompanySection 6.11), as finally determined by the Supreme Court of Bermuda; and (ii) assume promptly advance to such Covered Person any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the Covered Person of any Claim Expenses incurred by such Covered Person in connection with enforcing any rights with respect to such indemnification and/or advancement; provided that, notwithstanding the foregoing, the Covered Person to whom such Claim Expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Covered Person is not entitled to indemnification from the Surviving Corporation. In the event of any such D&O Claim, Parent and the Surviving Corporation shall provide all obligations cooperation reasonably requested by the Covered Person in the defense of any such D&O Claim. All rights to indemnification and advancement conferred hereunder shall continue as to a Person who has ceased to be a director, officer or employee of the Company or any of its Subsidiaries after the date hereof and such Subsidiaries shall inure to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents benefit of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company Person’s heirs, successors, executors and any Indemnitee. Without limiting the foregoing, Parent, personal and legal representatives.
(b) For not less than six (6) years from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum articles of association incorporation and bye-laws bylaws of the Surviving Company to Corporation shall contain provisions no less favorable to the Indemnitees with respect to limitation exculpation, limitations on liability of liabilities Covered Persons, indemnification of directors and officers, advancement of expenses and indemnification to Covered Persons than are set forth as of the date hereof in the Articles of Incorporation and the Bylaws. Notwithstanding anything herein to the contrary, if any D&O Claim (whether arising before, at or after the Effective Time) is made against such Covered Persons with respect to matters subject to indemnification hereunder on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Agreement Section 6.9(b) shall continue in effect until the final disposition of such D&O Claim.
(c) Prior to the Effective Time, the Company Organizational Documents, shall purchase (and pay in full the aggregate premium for) a six (6)-year prepaid “tail” insurance policy (which provisions policy by its express terms shall not be amended, repealed, survive the Merger) of at least the same coverage and amounts and containing terms and conditions that are no less favorable to the covered individuals as the Company’s and its Subsidiaries’ existing directors’ and officers’ insurance policy or otherwise modified for policies with a claims period of six (6) years from the Effective Time in a manner for D&O Claims arising from facts, acts, events or omissions that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after occurred on or prior to the Effective Time. Notwithstanding the foregoing, in no event shall such tail policy have a total premium amount greater than two hundred seventy-five percent (275%) of the Surviving annual premium most recently paid by the Company shall maintain in effect for its existing directors’ and officers’ liability insurance from an insurance carrier with the same policy or better financial strength policies as of the Company’s current carrier with respect to date hereof (such amount, the “Maximum Annual Premium”). The Company represents and warrants that, as of the date hereof, the annual premium paid by the Company for such existing directors’ and officers’ liability insurance covering acts policy or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b6.9(c) of the Company Disclosure Letter. If such tail policy is not reasonably available or the premium of such tail policy exceeds the Maximum Annual Premium, then Parent the Company shall provide or cause to be provided obtain a tail policy for the applicable individuals with the best greatest coverage as shall then be available at an annual for a total premium not in excess of exceeding the Maximum Annual Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by If the Company and its Subsidiaries with respect fails to matters existing or occurring obtain such tail policy prior to the Effective Time, including Parent or the TransactionsSurviving Corporation shall obtain such a tail policy. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) Parent and the Surviving Company Corporation shall use its reasonable best efforts to cause any such policy (whether obtained by Parent, the Company or the Surviving Corporation) to be maintained in full force and effect, for its full term, and Parent shall cause the Surviving Corporation to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, Parent or the Surviving Company, or any of their respective successors or assigns Corporation (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys sells all or substantially all of its properties and assets to any Person, then, and in each such case, then proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the successors and assigns of Parent or the Surviving Company case may be, shall assume all of the obligations thereof set forth in this Section 6.086.9.
(e) Nothing The obligations under this Section 6.9 shall survive the Closing and shall not be terminated or modified in any manner that is adverse to any Covered Persons (and their respective successors and assigns), it being expressly agreed that each Covered Person (including their respective successors and assigns) shall be a third-party beneficiary of this Section 6.9. In the event of a final judgement or adjudication of a breach by the Surviving Corporation or Parent of this Section 6.9, the Surviving Corporation shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by Covered Persons in enforcing the indemnity and other obligations provided in this Section 6.9 as such fees are incurred, upon the written request of such Covered Person.
(f) The rights of the Covered Persons under this Section 6.9 are in addition to any rights such Covered Persons may have under the Articles of Incorporation and the Bylaws, or under any applicable Contracts or Laws and nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Meritor, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior All rights to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for to advancement of expensesexpenses relating thereto now existing in favor of any Person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director or officer of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Company’s Organizational Documents and Documents, the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as Subsidiary of the date of this Agreement providing for Company or any indemnification agreement between such Indemnified Party and the Company and or any Indemnitee. Without limiting of its Subsidiaries shall survive the foregoingMerger and, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from and after the Effective Time Time, shall not be amended, repealed or otherwise modified in a any manner that would adversely affect the rights any right thereunder of the Indemnitees, except as amendments may be required by applicable Law during any such periodIndemnified Party.
(b) For Without limiting Section 6.08(a) or any rights of any Indemnified Party pursuant to any indemnification agreement set forth in Section 6.08(b) of the six-year period commencing immediately Company Disclosure Schedule (such agreements, the “Disclosed Indemnity Agreements”), from and after the Effective Time, in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee) or officer of the Company, any of its Subsidiaries or any of their respective predecessors, or served as a fiduciary of any employee benefit plan of the Company or its Subsidiaries, or any action or failure to take action in any such capacity, or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, Parent and the Surviving Corporation shall (x) indemnify and hold harmless, as and to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect as of the Effective Time, each such Indemnified Party against any Damages (including reasonable attorneys’ fees and expenses, which shall be paid or reimbursed in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect as of the Effective Time upon receipt of any undertaking required by applicable Law or such Organizational Documents), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim, and (y) comply with the terms of each Disclosed Indemnity Agreement with respect to such Claim. None of Parent or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification has been sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party has validly sought indemnification under any Disclosed Indemnity Agreement. The Surviving Corporation’s obligations under this Section 6.08(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.
(c) The Company shall maintain in effect obtain, at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength policies in respect of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees for six years from the Effective Time, covering each person who is covered by such policies on the date of this Agreement on terms and scope with respect to such coverage, coverage and in amount, amounts no less favorable in the aggregate than those of such policies in effect on the date of this Agreement, and such tail policy may not be amended, modified or cancelled or revoked by the Company, Parent or the Surviving Corporation. In the event the Company does not obtain such “tail” insurance policies, then, for a period of six years from the Effective Time, Parent shall maintain in effect the Company’s current directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time, covering each Indemnified Party on terms with respect to such individuals coverage and amounts no less favorable in the aggregate than those of such policies in effect on the date of this Agreement; provided, however, that, if that neither Parent nor the Surviving Corporation shall be required to pay an aggregate annual premium for such insurance shall exceed policies to the extent exceeding 300% of the current annual premium paid by the Company for coverage for its last full fiscal year for such insurance (such 300% threshold, which amount the “Maximum Premium”), which Maximum Premium Company represents and warrants is set forth in Section 6.08(b6.08(c) of the Company Disclosure LetterSchedule); and provided, then further, that if the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall provide or cause be obligated to be provided obtain a policy for the applicable individuals with the best greatest coverage as shall then be available at an annual premium for a cost not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six exceeding such amount.
(6d) years, a six-year prepaid “tail” policy on terms From and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to after the Effective Time, including in the Transactions. If event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such prepaid “tail” policy has been obtained by consolidation or merger or (ii) transfers or conveys all or a substantial portion of its stock, properties or assets to any Person, then, and in each such case, the CompanySurviving Corporation or Parent, it respectively, shall cause proper provision to be deemed made so that the successors or assigns or transferees, as the case may be, shall succeed to satisfy all the obligations to obtain insurance pursuant to set forth in this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder6.08.
(ce) The From and after the Effective Time (but not prior thereto), the provisions of this Section 6.08 are (i) are intended to be for the benefit of, and shall will be enforceable by, each IndemniteeIndemnified Party, his or her heirs, heirs and his or her Representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, Contract or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, each of Parent and the Surviving Company Corporation shall, and Parent shall cause the Surviving Company Corporation to, in each case to the fullest extent permissible by applicable Law, (i) jointly and severally indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including reasonable fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director director, officer, employee or officer agent of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; ) and (ii) assume (in the case of the Surviving Corporation, in the Merger without any further action) all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable unless otherwise required by Law, the memorandum articles of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the IndemniteesIndemnitees in any material respect. In addition, except from the Effective Time, Parent shall, and shall cause the Surviving Corporation to, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including reasonable fees and expenses of legal counsel) of any Indemnitee under this Section 5.06 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.06) as amendments may incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be required by determined that such Person is not entitled to be indemnified pursuant to this Section 5.06(a) or applicable Law during such period.Law. 40
(b) None of Parent or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.06 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (c) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those Indemnitees who are currently (and any additional Indemnitees who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable in the aggregate to such individuals than those of such policies policy in effect on the date of this AgreementAgreement (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same aggregate coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy; provided, however, that, that if the aggregate annual premium for such insurance exceeds 300% of the annual premium for such insurance shall exceed 300% as of the current annual premium date hereof (such 300% threshold, the “Maximum PremiumPremium Cap”), which Maximum Premium is set forth in Section 6.08(b) of then the Company Disclosure Letter, then Surviving Corporation or Parent shall provide or cause to be provided a policy for the applicable covering such individuals with the best coverage as shall is then be available at an annual premium a cost up to but not in excess of the Maximum Premiumexceeding such Premium Cap. The Company may (or if requested by Parent, the Company shall), in consultation with Parent, purchase, prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) yearsTime, a six-year prepaid “tailtail policy” policy on terms and conditions providing at least substantially equivalent benefits in the aggregate as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including covering without limitation the Transactions, at an aggregate cost up to but not exceeding the aggregate maximum amount payable pursuant to the proviso above for such six year period. If such prepaid “tailtail policy” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b5.06(c) and the Surviving Company Corporation shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.41
Appears in 1 contract
Samples: Merger Agreement
Indemnification and Insurance. (a) From The Company shall indemnify and hold harmless, and after the Effective Time, Time the Surviving Company shall, and Parent Corporation shall cause the Surviving Company to, (i) indemnify and hold harmless harmless, each individual who at the Effective Time ispresent and former employee, or at any time prior to the Effective Time wasagent, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company and its subsidiaries (the "Indemnified Parties") from and against any and all claims arising out of or in connection with activities in such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employeecapacity, or agent of the Company on behalf of, or such Subsidiary or taken at the request of of, the Company Company, its subsidiaries or such Subsidiary (including affiliates, to the fullest extent permitted under Delaware law and in connection with serving addition, to the fullest extend provided in their respective charters or by-laws or any contract or other arrangement in effect at the request date hereof which obligations shall survive the Merger and shall continue in full force and effect for a period of not less than six years form the Company Effective Time; provided, however, that if any claim or claims (a "Claim" or "Claims") are asserted or made within such Subsidiary as a directorsix year period, officerall rights to indemnification in respect of any such Claim or Claims shall continue until disposition of any and all such Claims. Without limiting the foregoing, employeethe Company, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, and after the Effective Time (including any Action relating in whole or in part the Surviving Corporation, shall advance expenses incurred with respect to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)foregoing, as they are incurred, to the fullest extent permitted under applicable Law; law, provided that no Indemnitee the person on whose behalf the expenses are advanced provides and undertakes (which need not be secured) to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(b) In addition to the indemnification provided in Section 6.06(a), Purchaser shall be indemnified indemnify and hold harmless each Indemnified Party from and against any liability that by virtue and all Claims arising out of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of connection with this Agreement, the date of this Agreement providing for indemnification between Offer, the Company Merger and any Indemniteeother transaction or event contemplated by this Agreement, which indemnity shall remain in full force and effect whether or not the Offer or the Merger is ever consummated. Without limiting the foregoing, Parent, from and after the Effective Time, Purchaser shall cause, advance expenses incurred wit respect to the fullest extent permitted under applicable Lawforegoing, as they are incurred, provided that the memorandum of association and bye-laws of person to whom the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, advanced provides an undertaking (which provisions shall need not be amended, repealed, or otherwise modified secured) to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(c) The Surviving Corporation shall use its best efforts to cause to be maintained in effect for a period of not less than six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance maintained by the Company and its Subsidiaries subsidiaries (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous so long as no lapse in coverage occurs as a result of such substitution) with respect to matters existing or all matters, including the transactions contemplated hereby, occurring prior to and including the Effective Time; provided that, including in the Transactions. If event that any Claim or Claims are asserted or made within such prepaid “tail” policy has been obtained by the Companysix-year period, it such insurance shall be deemed to satisfy continued in respect of any such Claim or Claims until final disposition of any and all obligations to obtain insurance pursuant to this Section 6.08(b) and such Claims; provided further that the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 Corporation shall not be terminated or modified required to pay annual premiums in excess of 400% of the Company's total current annual premiums for such a manner as insurance and if the Surviving Corporation is unable to adversely affect obtain the rights of any Indemnitee to whom insurance required by this Section 6.08 applies, unless (x6.06(c) such termination or modification is required by applicable Law or (y) the affected Indemnitee it shall have consented in writing obtain as much comparable insurance as can be obtained for an annual premium equal to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)maximum amount.
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective TimeClosing, the Surviving Company shall, Buyer Parties and Parent shall cause the Surviving Company to, Entity jointly and severally agree (i) to indemnify and hold harmless each individual who at Covered Person (as defined below) from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, relating to or arising out of this Agreement, the Effective Time isother Transaction Documents and the transactions contemplated hereby and thereby, in which any such Covered Person may be involved, as a party or at any time prior otherwise, by reason of its status as a Covered Person and acting (or omitting or refraining to act) in such capacity on behalf of or for the benefit of the Partnership, and (ii) to advance to such Covered Person expenses (including legal fees and expenses) incurred by such Covered Person in connection therewith, in the case of each of clauses (i) and (ii), to the Effective Time wassame extent provided in, a director or officer and in accordance with, the Organizational Documents of the Company, a Subsidiary Partnership Entities as of the Companyexecution date of this Agreement.
(b) The Buyer Parties agree that all rights to indemnification, or exculpation and advancement of expenses, elimination of liability and exculpation from liabilities existing in favor of (x) any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee who is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), atwas, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions Closing Date becomes, an officer, director or relating manager of any Partnership Entity or (y) any Person (together with such Person’s heirs, executors and administrators) who is or was serving, or at any time prior to the enforcement Closing Date serves, at the request of any Partnership Entity as an officer, director, member, general partner, fiduciary or trustee of another Person (other than Persons solely providing, on a fee-for-services basis, trustee, fiduciary or custodial services) (each, a “Covered Person”), as provided in the respective Organizational Documents of such Partnership Entities in effect as of the date of this provision Agreement, or pursuant to any other indemnification or advancement right of any Indemnitee), to agreements in effect on the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee date hereof and disclosed in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (iiSection 6.7(b) assume all obligations of the Company Partnership Disclosure Schedule, shall survive the Closing and shall continue in full force and effect for a period of not less than six years following the Closing Date, and the Buyer Parties shall cause each Partnership Entity and the Surviving Entity to honor and maintain in effect all such Subsidiaries rights to the Indemnitees in respect indemnification, exculpation and advancement of indemnification expenses, elimination of Liability and exculpation from liabilities during such period. For a period of not less than six years, the Buyer Parties shall not, and shall not cause or permit any Partnership Entity or the Surviving Entity to, amend, restate, waive or terminate any Organizational Document of the Partnership Entities in any manner that would adversely affect the indemnification or exculpation rights of any such Covered Person.
(c) The Buyer Parties covenant and agree that, during the period that commences on the Closing Date and ends on the sixth anniversary of the Closing Date, with respect to each Covered Person, including, for acts the avoidance of doubt, any such director, manager or officer that resigned or was removed effective as of the Closing pursuant to this Agreement, the Buyer Parties shall cause such applicable Partnership Entity and the Surviving Entity (i) to continue in effect the current fiduciary liability insurance policy or policies that such Partnership Entity has as of the date of this Agreement, or (ii) upon the termination or cancellation of any such policy or policies, (A) to provide fiduciary liability or similar insurance in substitution for, or in replacement of, such cancelled or terminated policy or policies or (B) to provide a “tail” or runoff policy (covering all claims, whether xxxxxx or inchoate, made during such six year period), in each case, providing coverage thereunder for acts, events, occurrences or omissions occurring or arising at or prior to the Effective Time Closing that is no less advantageous to each such Covered Person (including policy limits, exclusions and rights for advancement of expensesscope) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between covering such acts, events, occurrences or omissions under the Company and any Indemnitee. Without limiting fiduciary liability insurance or similar policy maintained by the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth Partnership Entities as of the date of this Agreement in Agreement; provided that Buyer Parties and the Company Organizational Documents, which provisions Partnership Entities shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium pay premiums for such insurance shall exceed policy in excess of 300% of the current annual premium (for such 300% thresholdcoverage, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) but shall purchase as much of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best such coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, possible for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)amount.
(d) In the event that Parent, the Surviving Company, any Buyer Party or any of their respective successors or assigns Partnership Entity (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) in one or more series of transactions, directly or indirectly, transfers or conveys all or substantially all of its properties and assets to any PersonPerson (whether by consolidation, merger or otherwise), then, and in each such case, proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the successors and assigns of Parent or the Surviving Company shall assume all of case may be, assumes the obligations thereof set forth in this Section 6.086.7.
(e) Nothing The provisions of this Section 6.7 shall survive the consummation of the transactions contemplated hereby for a period of six years; provided, however, that in this Agreement is intended to, shall be construed to, the event that any claim or shall release, waive, claims for indemnification or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any advancement of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for expenses set forth in this Section 6.08 is not prior 6.7 are asserted or made within such six-year period, all rights to or indemnification and advancement of expenses in substitution for respect of any such claim or claims shall continue until the disposition of such claims. The provisions of this Section 6.7 (i) are expressly intended to benefit each Covered Person, (ii) shall be enforceable by any Covered Person and its heirs and representatives against the Partnership Entities and the Buyer Parties, and (iii) shall be in addition to any other rights such Covered Person or its heirs and representatives have under the Organizational Documents of any Partnership Entity or applicable Law.
(f) This Section 6.7 shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of a Covered Person as provided herein except with the prior written consent of such policiesCovered Person.
Appears in 1 contract
Samples: Transaction Agreement (Landmark Infrastructure Partners LP)
Indemnification and Insurance. (a) From and after the Effective Time, Parent and the Surviving Company shall indemnify and hold harmless each present and former director and officer of the Company or any of its Subsidiaries (in each case, when acting in such capacity) (collectively, together with their respective heirs, executors and administrators, the “Company Directors and Officers”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages, amounts paid in settlement or other Liabilities incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (an “Indemnified Action”), arising out of the fact that such person is or was a director or officer of the Company or any of its Subsidiaries (or, at the request or for the benefit of the Company or any of its Subsidiaries, of any other person) at any time at or before the Effective Time, whether pertaining to matters existing or occurring or actions or omissions taken (or alleged to have existed, occurred or been taken) at or after the Effective Time, including the transactions contemplated by this Agreement, in each case to the fullest extent permitted by applicable Law, and Parent and the Surviving Company shall also advance expenses to the Company Directors and Officers in connection with any and all such Indemnified Actions as incurred to the fullest extent permitted by applicable Law; provided, that each of the Company Directors and Officers to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable judicial determination that such Company Directors and Officers are not entitled to indemnification under this Section 5.9(a) or otherwise.
(b) Parent agrees and shall cause the Surviving Company to agree, and the Company agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Company Directors and Officers or any current or former employee of the Company or any of its Subsidiaries (together with their heirs, executors and administrators, and the Company Directors and Officers, the “Company Indemnified Parties”) as provided in the Company Organizational Documents (or the Company Subsidiary Organizational Documents) or any indemnification agreements in existence as of the date hereof (i) with any Company Directors and Officers or (ii) set forth on Section 5.9(b) of the Company Disclosure Schedule, shall survive the Merger and shall continue in full force and effect in accordance with their terms. For a period of six years after the Effective Time, Parent shall cause the Surviving Company to agree, and the Company agrees, to maintain in effect the indemnification, exculpation and advancement of expenses provisions of the Company Organizational Documents (and the Company Subsidiary Organizational Documents) now in effect and any such indemnification agreements of the Company or its Subsidiaries with the Company Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Company Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(c) For a period of six years after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not maintained in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as effect the current policies of directors’ and officers’ liability insurance maintained by the Company (provided, that the Surviving Company may substitute therefor policies with a substantially comparable insurer of at least the same coverage and its Subsidiaries amounts containing terms and conditions which are no less advantageous to the insured) with respect to matters existing claims arising from facts or occurring events, or actions or omissions, which occurred or are alleged to have occurred at or before the Effective Time; provided, however, that the Surviving Company shall not be obligated to make annual premium payments in respect of any one policy year for such insurance to the extent such premiums exceed 250% of the annual premiums paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Company shall, and Parent shall cause the Surviving Company to, cause to be maintained policies of insurance which, in the Surviving Company’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap. In lieu of the foregoing, Parent, or the Company after prior consultation with Parent, may obtain at or prior to the Effective TimeTime a six-year prepaid “tail” policy under the Company’s existing directors’ and officers’ insurance policy providing coverage no greater than the current policies of directors’ and officers’ liability insurance maintained by the Company; provided, including that the Transactions. If Company shall not purchase such prepaid “tail” policy has been obtained for a total cost in excess of 250% of the then current annual premium paid by the Company for such insurance (the “Tail Cap”) without the prior written consent of Parent; provided further that if the total cost for such prepaid “tail” policy exceeds the Tail Cap, then Parent or the Company, it shall be deemed after prior consultation with Parent, may obtain a prepaid “tail” policy with the maximum coverage available for a total cost not to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and exceed the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderTail Cap.
(cd) The rights of each Company Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Company Indemnified Party may have under the Company Organizational Documents (or Company Subsidiary Organizational Documents), any other Contract, any Law or otherwise. The provisions of this Section 6.08 5.9 shall survive the Effective Time and, notwithstanding anything to the contrary in this Agreement, are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, Company Indemnified Party and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)representatives.
(de) In the event that Parent, the Surviving Company, Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each either such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Company, as the case may be, shall assume all of the obligations thereof set forth in this Section 6.08.
(e) 5.9. Nothing in this Agreement is intended to, shall be construed to, to or shall release, waive, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of or their respective directors, officers, or other directors and employees, it being understood and agreed that the indemnification provided for in this Section 6.08 5.9 is not prior to to, or in substitution for for, any such claims under any such policies.
Appears in 1 contract
Samples: Merger Agreement (Conversant, Inc.)
Indemnification and Insurance. (a) From and after the Effective TimeProvider shall indemnify, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify defend and hold harmless each individual who at the Effective Time isCity and its officials, or at any time prior employees and agents (collectively referred to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the as “Indemnitees”) with respect to and each of them from and against all claimsloss, liabilitiescosts, lossespenalties, fines, damages, judgmentsclaims, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses attorney’s fees) or liabilities (collectively referred to as “Liabilities”) by reason of legal counsel) any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with any Action (whether civil, criminal, administrative, i) the performance or investigative), whenever asserted, based on non-performance of Services contemplated by this Agreement which is or arising out ofis alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (Awhether active or passive) the fact that an Indemnitee is of Provider or was a director its employees, agents or officer sub-providers (collectively referred to as “Provider”), regardless of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employeewhether it is, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a directoris alleged to be, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating caused in whole or in part to the Transactions (whether joint, concurrent or relating to the enforcement of this provision contributing) by any act, omission, default or any other indemnification negligence (whether active or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any passive) or strict liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
or any of them or (bii) For the six-year period commencing immediately after failure of Provider to comply with any of the Effective Timeparagraphs herein or the failure of Provider to conform to statutes, the Surviving Company shall maintain ordinances, or other regulations or requirements of any governmental authority, federal, state or local, in effect directors’ and officers’ liability insurance from an insurance carrier connection with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date performance of this Agreement; provided, however, that, if . Provider expressly agrees to indemnify and hold harmless the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving CompanyIndemnitees, or any of their respective successors them, from and against all liabilities which may be asserted by an employee or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity former employee of such consolidationProvider, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries sub- providers, as provided above, for any of their respective directorswhich Provider’s liability to such employee or former employee would otherwise be limited to payments under state Workers’ Compensation or similar laws. Nothing herein shall require Provider to indemnify, officersdefend, or other employees, it being understood hold harmless any Indemnitee for the Indemnitee’s own gross negligence or willful misconduct. Any and agreed that the indemnification all indemnity provided for in this Section 6.08 Contract shall survive the expiration of this Contract and the discharge of all other obligations owed by the parties to each other hereunder and shall apply prospectively not only during the term of this Contract but thereafter so long as any liability could be asserted in regard to any acts or omissions of Contractor in performing under this Contract
A. ENVIRONMENTAL INDEMNIFICATION. Provider agrees to indemnify, defend and hold city and its council members, board and commission members, officials, agents, guests, invitees, consultants and employees free and harmless from and against any and all claims, demands, proceedings, suits, judgments, costs, penalties, fines, damages, losses, attorneys’ fees and expenses asserted by local, state, or federal environmental agencies or private individuals or entities in connection with or resulting from or arising out of Provider’s handling, collection, transportation, storage, disposal, treatment, recovery, and/or reuse by any person under Provider’s direction or control of waste collected, transported or landfilled or any cleanup associated with environmental contamination, whether such cleanup is not prior of air, soil, structure, ground water or surface water contamination. Provider specifically agrees to indemnify, defend and hold harmless city against all claims damages and liabilities of whatever nature asserted under CERCLA caused by acts or in substitution omissions of Provider regardless of when such incident is discovered. Provider shall be responsible and liable for any spill, underground pollution or any other environmental impairment incident caused by acts or omissions of Provider regardless of when such claims under such policiesincident is discovered. It is the intent of the parties that this section shall in no way limit other coverage herein as it may relate to any environmental claim, damage, loss or liability of any kind.
Appears in 1 contract
Samples: Professional Services
Indemnification and Insurance. (a) From and after the Effective Time, Parent and the Surviving Company shall, Corporation shall jointly and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)severally, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud law, indemnify, defend and hold harmless, each present and former director, stockholder, officer or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations employee of the Company and such Subsidiaries its Subsidiary (collectively, the "Company Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, with respect to the Indemnitees in respect of indemnification and exculpation from liabilities for any acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, to the same extent as provided in the Company Organizational Documents and the Organizational Documents Company's certificate of such Subsidiaries incorporation or by-laws or any applicable contract or agreement as in effect on the date hereof, accurate and complete copies of this Agreement or in any agreement in existence as of which contracts and agreements have been provided to the Parent prior to the date hereof, in each case for a period of six years after the date hereof; provided, that in no event shall Parent and the Surviving Corporation's aggregate liability under this Agreement providing for Section 5.05(a) exceed $500,000; provided, further, that this provision shall not operate to extend the term of any indemnification provided under any applicable contract or agreement; provided, further, that to the extent this Section 5.05 conflicts with any other agreement between the Company and any IndemniteeCompany Indemnified Party, the terms of this Agreement shall control and such prior agreement shall be deemed to have been superseded. Without limiting In the foregoingevent that any claim for indemnification is asserted or made within such six-year period, Parent, from all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(b) The former holders of the Company Common Stock and after the Effective Time, Company Preferred Stock shall causejointly and not severally, to the fullest extent permitted under applicable Lawlaw, indemnify and hold harmless Parent and each of its Subsidiaries (including the Surviving Corporation after the Closing Date), and their respective directors, officers, employees and representatives, and their respective successors and assigns (collectively, the memorandum "Parent Indemnified Parties"), from all losses, liabilities, damages, deficiencies, demands, claims, actions, judgments or causes of association action, assessments, costs or expenses (including, without limitation, interest, penalties and bye-laws reasonable attorneys' fees and disbursements) ("Parent Damages") based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation or warranty of the Surviving Company to contain provisions no less favorable contained in this Agreement (including the Schedules attached thereto), or (ii) any breach by the Company on or prior to the Indemnitees with respect Closing Date of any covenant or agreement in this Agreement required to limitation be performed by the Company on or prior to the Closing Date, or (iii) any breach of liabilities any accredited person representation; provided, that in no event shall the former holders' of directors the Company Common Stock and Company Preferred Stock aggregate liability under this Section 5.05(b) exceed the Merger Consideration Setoff.
(c) Prior to the Closing Date and upon the election of the majority holders of the Company Preferred Stock, the Surviving Corporation, or the Company shall purchase a "tail" policy under the Company's existing directors' and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period ' insurance policy that (i) has an effective term of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the IndemniteesTime, except as amendments may (ii) covers those Persons who are currently covered, or will be required by applicable Law during such period.
(b) For the six-year period commencing immediately after covered on or prior to the Effective Time, by the Surviving Company shall maintain Company's directors' and officers' insurance policies in effect directors’ and officers’ liability insurance from an insurance carrier with on the same or better financial strength of the Company’s current carrier date hereof with respect to directors’ and officers’ liability insurance covering acts or omissions matters occurring at on or prior to the Effective Time with respect to Indemnitees on and (iii) contains terms and scope with respect to such coverage, and in amount, no conditions (including without limitation coverage amounts) that are not materially less favorable to such individuals than those in the aggregate as the terms and conditions of such the Company's directors' and officers' insurance policies in effect on the date of this Agreementhereof; provided, however, thatParent, Surviving Corporation or Company (with the prior written consent of the Parent), as the case may be, shall be entitled to reduce the term of coverage, if the annual premium for such insurance shall exceed 300% necessary, to a term of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to coverage that can be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, obtained for an aggregate amount not premium equal to exceed $200,000 plus any unearned premium actually refunded or credited to the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries Surviving Corporation or Parent with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain 's existing directors' and officers' insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwisepolicies. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that ParentParent or Surviving Corporation obtains insurance hereunder from a carrier or carriers other than the Company's existing carriers, such carrier or carriers shall be reasonably comparable to the Company's existing carriers in all material respects. Notwithstanding the foregoing, the Surviving CompanyCorporation or Parent, as the case may be, shall not be liable for any negative change in such coverage that is attributable to a market change in the types of coverage or any levels of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not coverage generally available for similarly situated insureds. To the continuing or surviving company or entity extent the holders of such consolidationa majority of the Company Preferred Stock request the purchase of a "tail" policy, amalgamation, or merger or (ii) transfers or conveys all or substantially all 50% of its properties and assets to any Person, then, and in each such case, proper provision the actual amount of the purchase price of the "tail" policy shall be made so that the successors "Tail Policy Deduction" and assigns of Parent or deducted from the Surviving Company shall assume all of the obligations thereof set forth Merger Consideration in this accordance with Section 6.082.06(a) herein.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification and Insurance. (a) From The Articles of Incorporation and by-laws of the Company (and the Surviving Corporation after the Effective Time) shall contain the provisions with respect to indemnification set forth in the Restated Articles of Incorporation and By-Laws of the Company on the date of this Agreement, the Surviving Company shallwhich provisions shall not be amended, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at repealed or otherwise modified for a period of six years after the Effective Time is, or in any manner that would adversely affect the rights thereunder of any individual who at any time prior to the Effective Time waswas an employee, a director or officer of the Companyagent, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent any of the Company or Company's subsidiaries, together with each such Subsidiary or taken at person's heirs, representatives, successors and assigns (individually, an "Indemnified Party" and collectively the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A"Indemnified Parties") or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts actions or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in including, without limitation, the transactions contemplated by the Agreement). Parent shall cause the Company Organizational Documents and (or the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and Surviving Corporation if after the Effective Time) to, shall cause, to and the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of Company (or the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately Corporation if after the Effective Time) shall, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to for not less than 6 years after the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ ' and officers’ ' liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and 's subsidiaries on the Surviving date hereof (provided that the Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.may 16
(cb) The provisions of this Section 6.08 6.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, the respective Indemnified Parties and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys binding on all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or Parent, Purchaser, the Company and the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08Corporation.
(ec) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect Notwithstanding anything herein to the Company contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made or threatened against any Indemnified Party on or prior to the sixth anniversary of its Subsidiaries for any the Effective Time, the provisions of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to 6.7 shall continue in effect until the final disposition of such claim, action, suit, proceeding or in substitution for any such claims under such policiesinvestigation.
Appears in 1 contract
Samples: Merger Agreement (Safety Kleen Corp)
Indemnification and Insurance. (a) From and after Following the Effective Time, the Surviving Company shallsubject to Applicable Law, and Parent Buyer shall cause the Surviving Company toindemnify, (i) indemnify defend and hold harmless each individual who at (and advance expenses to) the Effective Time iscurrent or former directors, officers, employees or at any time prior to the Effective Time was, a director or officer agents of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company Bank and their respective subsidiaries (each, together with such Person’s heirsan "Indemnified Party", executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”"Indemnified Parties") with respect to against all claims, liabilities, losses, damagescosts or expenses (including reasonable attorneys' fees), judgments, fines, penaltieslosses, costs claims, damages or liabilities (including amounts paid in settlement or compromise)collectively, and expenses (including fees and expenses of legal counsel) "Costs" as incurred, in connection with any Action (claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement) to the fullest extent that the Company, the Bank or their respective subsidiaries are required to indemnify (and rights advance expenses to) the Indemnified Parties under the laws of their respective jurisdictions of incorporation, their respective charters, their respective bylaws and any agreements entered into between the Company, the Bank or any of their respective subsidiaries and such Indemnified Parties (the "Indemnification Provisions").
(b) Buyer will cause to be maintained, for advancement a period of expensessix years from the Effective Time, the Company's current directors' and officers' insurance and indemnification policy ("Company D&O Insurance") covering those Persons (the "Covered Persons")who are currently covered by Company D&O Insurance to the extent that it provides coverage for events or acts occurring prior to or at the Effective Time (through the continuation or endorsement of the policy for Company D&O Insurance or the purchase of a "tail-end rider"), provided, that Buyer may, in lieu of maintaining such existing Company D&O Insurance, cause coverage to be provided under any policy maintained for the benefit of Buyer or any of its subsidiaries (a "Buyer Policy"), so long as provided the terms thereof are substantially similar to those of the existing Company D&O Insurance (including, without limitation, with respect to the continuity dates and the extent of coverage for prior events or acts) to the extent, in either circumstance, that the annual premiums for such coverage do not exceed 150% of the annual premiums paid by the Company Organizational Documents and or the Organizational Documents of Bank for such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence coverage as of the date of this Agreement providing for indemnification between Agreement. To the extent that such annual premiums do exceed 150% of the annual premiums currently paid by the Company or the Bank for such coverage, Buyer shall use its best efforts to obtain the maximum amount of such coverage that may be purchased for an annual premium equal to 150% of the annual premiums currently paid by the Company or the Bank. The provision of insurance coverage described herein is not intended to alter or reduce the right of indemnity in favor of officers, directors, employees and any Indemnitee. Without limiting agents of the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable LawCompany, the memorandum Bank or any of association and byetheir respective subsidiaries under their charters, bylaws, indemnification agreements or otherwise. For the avoidance of doubt: (i) in the event that a tail-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees end rider is purchased, Buyer's obligation with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in total premium therefor shall not exceed the annual premium currently paid by the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of the Company D&O Insurance multiplied by six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that ParentBuyer causes the required coverage to be provided under a Buyer Policy, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth 150% limitation provided in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence 5.13 applies only with respect to the Company or any incremental cost of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that adding the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesCovered Persons.
Appears in 1 contract
Samples: Merger Agreement (Bank Plus Corp)
Indemnification and Insurance. (a) From The Certificate of Incorporation and after By-Laws of the Surviving Corporation shall contain provisions with respect to indemnification, advancement of expenses and exculpation at least as protective to any officer or director as those set forth in the Certificate of Incorporation and By-Laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective TimeTime in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees or agents of the Surviving Company shallCompany, and unless such modification is required by law.
(b) Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)Corporation, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches law, to such Indemnitee in respect of any fraud indemnify and hold harmless, and advance defense costs and expenses to, each present and former director, officer or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations employee of the Company or any of its subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages and such Subsidiaries liabilities incurred in connection with, and amounts paid in settlement of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and wherever asserted, bought or filed, (x) arising out of or pertaining to the Indemnitees in transactions contemplated by this Agreement or (y) otherwise with respect of indemnification and exculpation from liabilities for to any acts or omissions or alleged acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, to the same extent as provided in the respective Certificate of Incorporation or By-Laws of the Company Organizational Documents and or the Organizational Documents of such Subsidiaries subsidiaries or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time) in which there exists no conflict between the interests of the indemnifying party and the Indemnified Party, the indemnifying party shall have a right to assume and direct all aspects of the defense thereof, including settlement, and the Indemnified Party shall cooperate in the defense of any such matter. The Indemnified Party shall have a right to participate in (but not control) the defense of any such matter with its own counsel and at its own expense. The indemnifying party shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement provides the Indemnified Party with a full release and discharges all rights against the Indemnified Party with respect to such matter. In no event shall the indemnifying party be liable for any settlement effected without its prior written consent; provided that if such indemnifying party elected not to assume and direct the defense of such action, such indemnifying party's consent to such settlement shall not be unreasonably withheld or delayed. Any Indemnified Party wishing to claim indemnification under this Agreement Section 5.4(b), upon learning of any such claim, action, suit, proceeding or investigation, shall notify Parent and the Surviving Corporation (but the failure so to notify shall not relieve the indemnifying party from any liability which it may have under EXECUTION COPY EXHIBIT 2.1 this Section 5.4(b) except to the extent of any damages caused by such failure to the indemnifying party), and shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Section 145(e) of the Delaware Law. If the indemnifying party does not assume the defense of any such action, the Indemnified Parties as a group may retain only one law firm in each jurisdiction to represent them with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The indemnity agreements of Parent and the Surviving Corporation in this Section 5.4(b) shall extend, on the same terms to, and shall inure to the benefit of and shall be enforceable by, each person or entity who controls, or in the past controlled, any agreement in existence as present or former director, officer or employee of the date Company or any of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and its subsidiaries.
(c) For a period of six years after the Effective Time, Parent shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of cause the Surviving Company Corporation or any successor thereto to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors maintain in effect, if available, directors, and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ ' liability insurance covering acts or omissions actions by directors and officers of the Company occurring at or prior to the Effective Time with respect and covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been made available to Indemnitees Parent) (the "COVERED PERSONS") on terms (including the amounts of coverage and scope with respect the amounts of deductible, if any) that are comparable to such coveragethe terms now applicable to the Company's directors and officers under the Company's current policies, and in amount, with insurers of no less favorable to such individuals lesser financial standing than those of such policies in effect on the date of this Agreementinsurers issuing the Company's current policies; provided, however, that, if that in no event shall Parent or the Surviving Corporation be required to expend in excess of 250% of the annual premium currently paid by the Company for such insurance coverage; and provided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall exceed 300purchase a policy with the greatest coverage available for such 250% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)premium.
(d) This Section shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and shall be enforceable by the Indemnified Parties. In the event that Parent, the Parent or Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person or entity and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson or entity, then, then and in each such case, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Company shall Corporation (as the case may be) assume all of the obligations thereof of Parent and the Surviving Corporation set forth in this Section 6.08Section.
(e) Nothing in this Agreement is intended toFrom and after the Effective Time, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims Parent unconditionally guarantees the obligations of the Surviving Corporation arising under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies5.4.
Appears in 1 contract
Indemnification and Insurance. (a) Parent agrees that all rights to indemnification now existing in favor of any officers, directors, employees, controlling stockholders or agents of any of the Target Companies, as provided in their respective charters or bylaws (or similar organizational documents), and any existing indemnification agreements or arrangements of any of the Target Companies, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time (or such longer period as may be provided in any existing indemnification agreement between any of the Target Companies, and any current or former officer or director thereof); provided, that, in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(b) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause for a period of six years after the Surviving Company toEffective Time, (i) indemnify indemnify, defend and hold harmless each individual person who at the Effective Time isis now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time wasTime, a director an officer, director, employee, controlling stockholder or officer agent of any of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company Target Companies (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “IndemniteesIndemnified Parties”) with respect to against all losses, expenses (including attorneys’ fees), claims, liabilities, losses, damages, judgments, fines, penalties, costs (including liabilities and amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of, or compromiseotherwise in connection with, any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) part on or arising in whole or in part out of the fact that an Indemnitee the Indemnified Party (or the person controlled by the Indemnified Party) is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, controlling stockholder or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), Company Employee Benefit Plan but subject to any conditions or limitations on the indemnity set forth in each case under clause (Athe applicable Company Employee Benefit Plan) and pertaining to any matter existing or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement arising out of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts actions or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date including any Claim arising out of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingtransactions contemplated hereby), Parentwhether asserted or claimed prior to, from and at or after the Effective Time, shall cause, in each case to the fullest extent permitted under applicable LawNevada law, the memorandum of association and bye-laws shall pay any expenses, as incurred, in advance of the Surviving Company final disposition of any such action or proceeding to contain provisions no less favorable each Indemnified Party to the Indemnitees fullest extent permitted under applicable Nevada law. In determining whether an Indemnified Party is entitled to indemnification under this Section 5.15, if requested by such Indemnified Party, such determination shall be made by special, independent counsel selected by Parent and approved by the Indemnified Party (which approval shall not be unreasonably withheld), and who has not otherwise performed services for Parent or any of its Affiliates within the last three years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party(ies) (whether arising before or after the Effective Time): (i) Parent shall have the right to control the defense of such matter with Parent’s regularly engaged independent legal counsel or other counsel selected by Parent and reasonably satisfactory to the Indemnified Party(ies), and Parent shall pay all reasonable fees and expenses of such counsel; and (ii) the Indemnified Party(ies) shall cooperate with Parent, at Parent’s expense, in the defense of any such matter. Parent shall not be liable for any settlement effected without its prior written consent, which consent shall not unreasonably be withheld. In the event of any Claim, any Indemnified Party wishing to claim indemnification shall promptly notify Parent thereof (provided, that failure to so notify Parent shall not affect the obligations of Parent except to the extent that Parent shall have been prejudiced as a result of such failure) and shall deliver to Parent the undertaking contemplated by the applicable provisions of the NRS, but without any requirement for the posting of a bond. Without limiting the foregoing, in the event any such Claim is brought against any of the Indemnified Parties, such Indemnified Party(ies) may retain only one law firm (plus one local counsel, if necessary) to represent them with respect to limitation each such matter unless the use of liabilities counsel chosen to represent the Indemnified Parties would present such counsel with a conflict of directors and officersinterest, advancement or the representation of expenses and indemnification than are set forth as all of the date Indemnified Parties by the same counsel would be inappropriate due to actual or reasonably probable differing interests between them, in which case such additional counsel as may be required (as shall be reasonably determined by the Indemnified Parties and Parent) may be retained by the Indemnified Parties at the cost and expense of Parent and Parent shall pay all reasonable fees and expenses of such counsel for such Indemnified Parties. Notwithstanding the foregoing, nothing contained in this Agreement Section 5.15 shall be deemed to grant any right to any Indemnified Party which is not permitted to be granted to an officer, director, employee, controlling stockholder or agent of Parent under applicable Nevada law.
(c) From and after the Effective Time, Parent shall cause to be maintained in the Company Organizational Documents, which provisions shall effect for not be amended, repealed, or otherwise modified for a period of less than six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company Company, but only to the extent related to actions or omissions prior to the Effective Time; provided, that (i) Parent may substitute therefor policies of at least the same coverage containing terms and its Subsidiaries conditions which are no less advantageous; (ii) such substitution shall not result in gaps or lapses in coverage with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives ; and (iiiii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified required to pay an annual premium in such a manner as excess of 200% of the last annual premium paid by the Company prior to adversely affect the rights of any Indemnitee date hereof and if Parent is unable to whom obtain the insurance required by this Section 6.08 applies, unless (x5.15(c) such termination or modification is required by applicable Law or (y) the affected Indemnitee it shall have consented in writing obtain as much comparable insurance as possible for an annual premium equal to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)maximum amount.
(d) In Following the event that ParentMerger, the Surviving Company, if Parent or any of their respective its successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is shall not be the continuing or surviving company corporation or entity of such consolidationconsolidation or merger, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any PersonPerson or Persons, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and any of their successors and assigns, assume the Surviving Company shall assume all obligations of the obligations thereof Parties and Parent set forth in this Section 6.085.15.
(e) Nothing in this Agreement This Section 5.15 shall survive the consummation of the Merger at the Effective Time, is intended to, to benefit the Company and the Indemnified Parties (each of whom may enforce the provisions of this Section 5.15) and shall be construed to, or shall release, waive, or impair any rights to directors’ binding on the successors and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any assigns of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesParent.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective TimeAll rights to indemnification or exculpation, the Surviving Company shallexisting in favor of a director, and Parent shall cause the Surviving Company toofficer, employee or agent (ian "Indemnified Party") indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request (including, without limitation, rights relating to advancement of the Company (each, together with expenses and indemnification rights to which such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity persons are entitled because they are serving as a director, officer, employee, agent or agent employee of the Company or such Subsidiary or taken another entity at the request of the Company or such Subsidiary (including in connection with serving at the request any of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)its Subsidiaries), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents Company's Certificate of such Subsidiaries Incorporation or By-laws or any indemnification agreement, in each case, as in effect on the date of this Agreement Agreement, and relating to actions or events through the Effective Time, shall survive the Merger and shall continue in full force and effect, without any agreement amendment thereto; provided however, that the Surviving Corporation shall not be required to indemnify any Indemnified Party in existence as connection with any proceeding (or portion thereof) to the extent involving any claim initiated by such Indemnified Party unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the date Company or unless such proceeding is brought by an Indemnified Party to enforce rights under this Section 5.9; provided further that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL, the Company's Certificate of Incorporation or By-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by Parent and reasonably acceptable to the Indemnified Party (who has not performed services for Parent or its affiliates within the last three years); and provided further that nothing in this Agreement providing for indemnification between the Company and Section 5.9 shall impair any Indemniteerights of any Indemnified Party. Without limiting the foregoinggenerality of the preceding sentence, Parentin the event that any Indemnified Party becomes involved in any actual or threatened action, from and suit, claim, proceeding or investigation after the Effective Time, Parent shall, or shall causecause the Surviving Corporation to, promptly advance to such Indemnified Party his or her legal and other expenses (including the cost of any investigation and preparation in connection therewith), subject to the fullest extent permitted under applicable Law, the memorandum providing by such Indemnified Party of association and bye-laws of the Surviving Company an undertaking to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement reimburse all amounts so advanced in the Company Organizational Documents, which provisions shall event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Party is not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodentitled thereto.
(b) For the six-year a period commencing immediately of six years after the Effective Time, Parent shall cause the Surviving Company shall Corporation to maintain in effect effect, directors’ ' and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ ' liability insurance covering acts or omissions occurring at or prior those Persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been made available to the Effective Time with respect to Indemnitees Parent) on terms (including the amounts of coverage and scope with respect to such coveragethe amounts of deductibles, and in amount, if any) that are no less favorable to the terms now applicable to them under the Company's current policies; provided however that, in no event shall Parent or the Surviving Corporation be required to expend in excess of 200% of the annual premium currently paid by the Company for such individuals than those of such policies in effect on the date of this Agreementcoverage; provided, however, and provided further that, if the annual premium for such insurance coverage exceeds such amount, Parent or the Surviving Corporation shall exceed 300purchase a policy with the greatest coverage available for such 200% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderpremium.
(c) The provisions This Section 5.9 shall survive the consummation of this Section 6.08 are (i) the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be for binding on all successors and assigns of Parent, the benefit of, Company and the Surviving Corporation and shall be enforceable byby the Indemnified Parties, each Indemnitee, his or her their heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)personal representatives.
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification and Insurance. (a) From The Certificate of Incorporation and after By-Laws of the Surviving Corporation shall contain the provisions with respect to indemnification, exculpation and advancement of expenses set forth in the Certificate of Incorporation and By-Laws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of three years from the Effective Time, Time in any manner that would adversely affect the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual rights thereunder of individuals who at the Effective Time iswere present or former directors, officers, employees or at any time prior to the Effective Time was, a director or officer agents of the Company, a Subsidiary of the Company, or any other Person in which the unless such modification is required by law.
(b) The Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)shall, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue law or under the Company's Certificate of any rule Incorporation or By-Laws and regardless of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Parent and the Surviving Corporation shall, jointly and severally, to the Companyfullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-Laws, as finally determined by the Supreme Court of Bermuda; indemnify and (ii) assume all obligations hold harmless, each present and former director, officer or 19 25 employee of the Company or any of its subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages and such Subsidiaries liabilities incurred in connection with, and amounts paid in settlement of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and wherever asserted, brought or filed, (x) arising out of or pertaining to the Indemnitees in transactions contemplated by this Agreement or (y) otherwise with respect of indemnification and exculpation from liabilities for to any acts or omissions or alleged acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, to the same extent as provided in the respective Certificate of Incorporation or By-Laws of the Company Organizational Documents and or the Organizational Documents of such Subsidiaries subsidiaries or any applicable contract or agreement as in effect on the date of this Agreement or Agreement, in any agreement in existence as each case for a period of five years after the date hereof. In the event of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoingsuch claim, Parentaction, from and suit, proceeding or investigation (whether arising before or after the Effective Time), shall cause, to (i) any counsel retained by the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified Indemnified Parties for a any period of six (6) years from after the Effective Time in a manner that would adversely affect shall be reasonably satisfactory to the rights thereunder of the IndemniteesSurviving Corporation, except as amendments may be required by applicable Law during such period.
(bii) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain in effect directors’ (and officers’ liability insurance from an insurance carrier with Parent shall cause the same or better financial strength Surviving Corporation to) pay the reasonable fees and expenses of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coveragecounsel, promptly after statements therefor are received, and (iii) the Surviving Corporation will cooperate in amount, no less favorable to the defense of any such individuals than those of such policies in effect on the date of this Agreementmatter; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed); and provided, further, that, if in the annual premium event that any claim or claims for indemnification are asserted or made within such insurance five-year period, all rights to indemnification in respect of any such claim or claims shall exceed 300% continue until the disposition of the current annual premium (any and all such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premiumclaims. The Company Indemnified Parties as a group may prior retain only one law firm to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries represent them with respect to matters existing any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or occurring prior to the Effective Time, including the Transactionsmore Indemnified Parties. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) The indemnity agreements of Parent and the Surviving Company Corporation in this Section 4.12(b) shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full termextend on the same terms to, and shall inure to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, of and shall be enforceable by, each Indemniteeperson or entity who controls, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution forthe past controlled, any other rights present or former director, officer or employee of the Company or any of its subsidiaries.
(c) The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements with the Company's directors and officers existing at or contribution that any such individual may have under before the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)Effective Time.
(d) For a period of five years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect, directors' and officers' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been made available to Parent) on terms (including the amounts of coverage and the amounts of deductibles, if any) that are comparable to the terms now applicable to directors and officers of Parent, or, if more favorable to the Company's directors and officers, the terms now applicable to them under the Company's current policies; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend in excess of 300% of the annual premium currently paid by the Company for such coverage; and provided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall purchase a policy if available with the greatest coverage available for such 300% of the annual premium.
(e) From and after the Effective Time, Parent shall guarantee the obligations of the Surviving Corporation under this Section 4.12.
(f) This Section 4.12 shall survive the consummation of the Merger at the Effective Time, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and shall be enforceable by the Indemnified Parties. In the event that Parent, Parent or the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person person or entity and is shall not be the continuing or surviving company corporation or entity of in such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Personperson or entity, then, then and in each such case, proper provision provisions shall be made so that the successors and assigns of Parent or the Surviving Company shall Corporation (as the case may be) assume all of the obligations thereof of Parent and the Surviving Corporation set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.4.12. 20 26 SECTION 4.13
Appears in 1 contract
Indemnification and Insurance. (a) From and In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, in which any person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer or employee of Herkimer or Herkimer Bank (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of Herkimer or Herkimer Bank or any of their respective predecessors or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the Surviving Company shallparties hereto agree to cooperate and defend against and respond thereto to the extent permitted by applicable law and the Certificate of Incorporation and Bylaws of Herkimer or Organization Certificate and Bylaws of Herkimer Bank, as the case may be. It is understood and Parent agreed that after the Effective Time, Partners Trust shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time isharmless, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors as and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under by applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue law and the Certificate of any rule Incorporation and Bylaws of law attaches to such Indemnitee in respect Herkimer or Organization Certificate and Bylaws of any fraud or dishonesty of which such Indemnitee is guilty in relation to the CompanyHerkimer Bank, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries case may be, as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney's fees and expenses in advance of the Transactions. If final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement ("Damages") in connection with any such prepaid “tail” policy has been obtained threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to Partners Trust; provided, however, that (1) Partners Trust shall have the right to assume the defense thereof and upon such assumption Partners Trust shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the Companydefense thereof, it except that if Partners Trust elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between Partners Trust and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to Partners Trust, and Partners Trust shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) Partners Trust shall be deemed to satisfy all obligations to obtain insurance obligated pursuant to this Section 6.08(bparagraph to pay for only one firm of counsel for each Indemnified Party, (3) Partners Trust shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld or delayed), and (4) Partners Trust shall not be obligated pursuant to this paragraph to the Surviving Company extent that a final judgment determines that any Damages are as a result of the gross negligence or willful misconduct or result from a decision made by the Indemnified Party when the Indemnified Party had no good faith belief that he or she was acting in the best interests of Herkimer. Partners Trust shall use its reasonable best efforts have no obligation to cause advance expenses incurred in connection with a threatened or pending action, suit or preceding in advance of final disposition of such policy action, suit or proceeding, unless (i) Partners Trust would be permitted to advance such expenses pursuant to the DGCL and Partners Trust's Certificate of Incorporation or Bylaws, and (ii) Partners Trust receives an undertaking by the Indemnified Party to repay such amount if it is determined that such party is not entitled to be maintained indemnified by Partners Trust pursuant to the DGCL and Partners Trust's Certificate of Incorporation or Bylaws. Any Indemnified Party wishing to claim indemnification under this Section 6.13, upon learning of any such claim, action, suit, proceeding or investigation, shall notify Partners Trust thereof; provided, however, that the failure to so notify shall not affect the obligations of Partners Trust under this Section 6.13 except to the extent such failure to notify materially prejudices Partners Trust. Partners Trust's obligations under this Section 6.13 continue in full force and effecteffect for a period of six years from the Effective Time; provided, for its full termhowever, and to honor that all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification in respect of any claim asserted or contribution that made within such period shall continue until the final disposition of such claim. If Partners Trust or any such individual may have under the Company Organizational Documents, by Contract, of its successors or otherwise. The obligations of Parent assigns shall consolidate with or merge into any other entity and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys shall transfer all or substantially all of its properties and assets to any Personentity, then, then and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company Partners Trust shall assume all of the obligations thereof set forth in this Section 6.086.13.
(eb) Nothing Partners Trust shall purchase for the benefit of the persons serving as executive officers and directors of Herkimer and Herkimer Bank immediately prior to the Effective Time, directors' and officers' liability insurance coverage for two years after the Effective Time, under either Herkimer's policy in this Agreement is intended to, shall be construed toexistence on the date hereof, or shall releaseunder a policy of similar coverage and amounts containing terms and conditions which are generally not less advantageous than Partners Trust's current policy, waiveand in either case, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company acts or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not omissions occurring prior to the Effective Time which were committed by such executive officers and directors in their capacity as such ("Tail Insurance"), provided, however, that Partners Trust shall not be required to expend more than 150% of the current amount expended by Herkimer to maintain or in substitution for any such claims under such policiesprocure insurance coverage pursuant hereto.
Appears in 1 contract
Samples: Merger Agreement (Partners Trust Financial Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Company and the Surviving Company Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director director, officer, employee or officer agent of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, employee or fiduciary agent of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to connection with the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in (x) the Company Organizational Charter Documents and the Organizational Documents organizational documents of such Subsidiaries as currently in effect and (y) the indemnification agreements listed on the date of this Agreement or in any agreement in existence as Section 5.8 of the date of this Agreement providing for indemnification between Company Disclosure Schedule, which shall survive the Company Transactions and any Indemniteecontinue in full force and effect in accordance with their respective terms. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to cause the fullest extent permitted under applicable Law, the memorandum certificate of association incorporation and bye-laws bylaws of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, except from and after the Effective Time, Parent shall, and shall cause the Company and the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.8 (including in connection with enforcing the indemnity and other obligations provided for in this Section 5.8) as amendments may be incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law during such periodLaw.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company Parent shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees those persons who are currently (and any additional persons who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policy on terms and scope with respect to such coverage, and in amount, no not less favorable to such individuals than those of such policies policy in effect on the date of this Agreementhereof (or Parent may substitute therefor policies, including a tail policy, issued by reputable insurers, providing at least the same coverage with respect to matters occurring prior to the Effective Time); provided, however, that, if the aggregate annual premium premiums for such insurance shall exceed 300% of the current aggregate annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letterpremium, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of 300% of the Maximum Premium. The Company may prior to the Effective Time purchase, for an current aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderannual premium.
(c) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documentsby contract, by Contract, agreement or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(d) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shall, shall provide exculpation and Parent shall cause the Surviving Company to, (i) indemnify and hold harmless indemnification for each individual Person who at the Effective Time is, is now or has been at any time prior to the date hereof or who becomes prior to the Effective Time wasTime, a an officer, trustee or director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company Subsidiaries, (each, together with such Person’s heirs, executors the WRESI Shareholders (as defined below) 62 68 the "Indemnified Parties") which is the same as the exculpation and administrators, an “Indemnitee” and, collectively, indemnification provided to the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of Indemnified Parties by the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; WPT and (ii) assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or immediately prior to the Effective Time (and rights for advancement of expenses) as provided in the Company their respective Organizational Documents and the Organizational Documents of such Subsidiaries Documents, as in effect on the date of this Agreement hereof; provided, that such exculpation and indemnification covers actions on or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after prior to the Effective Time, shall causeincluding, to the fullest extent permitted under applicable Lawwithout limitation, the memorandum of association all transactions contemplated by this Agreement. From and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain also provide exculpation and indemnification for Bradxxx Xxxxx xxx Dennxx Xxxx xx their capacities as shareholders, officers and/or directors of WRESI (in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% thresholdcapacity, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b"WRESI Shareholders") of the Company Disclosure Letter, then Parent shall provide for all actions on or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to before the Effective Time, including, without limitation, all transactions contemplated by this Agreement, to the maximum extent permitted by law.
(b) In addition to the rights provided in Section 6.22(a) above, in the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including the Transactions. If such prepaid “tail” policy has been obtained without limitation, any action by or on behalf of any or all security holders of the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to WPT, or Pan Pacific, or any Subsidiary of the Company or Pan Pacific, or by or in the right of the Company, WPT, or Pan Pacific, or any Subsidiary of the Company or Pan Pacific, or any claim, action, suit, proceeding or investigation (collectively, for this Section 6.08(b6.22 "Claims") and the Surviving Company shall use its reasonable best efforts in which any Indemnified Party is, or is threatened to cause such policy be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution fact that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that he is or has been in existence with respect to was an officer, employee, trustee or director of the Company or any of its Subsidiaries or any action or omission or alleged action or omission by such Person in his capacity as an officer, employee, trustee or director, or (ii) the Company Transaction Documents or the Company DownREIT Transaction Documents or the Company Transactions or the transactions contemplated thereby, whether in any case asserted or arising before or after the Effective Time, Pan Pacific and the Surviving Company (the "Indemnifying Parties") shall from and after the Effective Time jointly and severally indemnify and hold harmless the Indemnified Parties from and against any losses, claims, liabilities, expenses (including reasonable attorneys' fees and expenses), judgments, fines or amounts paid in settlement arising out of or relating to any such Claims. Purchaser, the Surviving Corporation and the Indemnified Parties hereby agree to use their reasonable best efforts to cooperate in the defense of such Claims. In connection with any such Claim, the Indemnified Parties shall have the right to select and retain one counsel, at the cost of the Indemnifying Parties, subject to the consent of the Indemnifying Parties (which consent shall not be unreasonably withheld or delayed). In addition, after the Effective Time, in the event of any such threatened or actual Claim, the Indemnifying Parties shall promptly pay and advance reasonable expenses and costs incurred by each Indemnified Person as they become due and payable in advance of the final disposition of the Claim to the fullest extent and in the manner permitted by law. Notwithstanding the foregoing, the Indemnifying Parties shall not be obligated to advance any expenses or costs prior to receipt of an undertaking by or on behalf of the Indemnified Party, such undertaking to be accepted without regard to the creditworthiness of the Indemnified Party, to repay any expenses advanced if it shall ultimately be determined that the Indemnified Party is not entitled to be indemnified against such expense. Notwithstanding anything to the contrary set forth in this Agreement, the Indemnifying Parties (i) shall not be liable for any of settlement effected without their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is prior written consent (which consent shall not prior to or in substitution for any such claims under such policies.be
Appears in 1 contract
Samples: Merger Agreement (Pan Pacific Retail Properties Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company shallCorporation shall indemnify and shall advance expenses to each person who is on the date of this Agreement, or has been at any time prior to such date, or who becomes prior to the Effective Time, an officer or director (the "Indemnified Party") of General Physics or any of its subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including attorney's fees and expenses), judgments, fines, losses, and Parent shall cause amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each a "Claim") to the Surviving Company toextent that any such Claim is based on, or arises out of, (i) indemnify and hold harmless each individual who at the Effective Time is, fact that such person is or was a director or officer of General Physics or any of its subsidiaries at any time prior to the Effective Time was, (or is or was serving as a member of the Special Committee at any time prior to or at the Effective Time) or is or was serving at the request of General Physics or any of its subsidiaries as a director or officer of another corporation, partnership, joint venture, trust or other enterprise at any time prior to the Company, a Subsidiary of the CompanyEffective Time, or any other Person in which the Company (ii) this Agreement or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan))transactions contemplated hereby, in each case under clause (A) to the extent that any such Claim pertains to any matter or (B)fact arising, atexisting, or occurring prior to or at any time prior to, the Effective Time (including or pertains to any Action relating in whole act or in part to function of the Transactions or Special Committee relating to this Agreement or the enforcement transactions contemplated hereby whether arising, existing, or occurring prior to or at the Effective Time), regardless of this provision whether such Claim is asserted or any other indemnification claimed prior to, at or advancement right of any Indemniteeafter the Effective Time (the matters described in clauses (i) and (ii), the "Merger Matters"), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of Delaware law attaches (including provisions relating to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement incurred in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period defense of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such periodany Claim).
(b) For The Parent and Newco agree that all limitations or exculpation of liabilities existing in favor of an Indemnified Party as provided in the sixGPC Charter and the GPC By-year period commencing immediately after the Effective Time, the Surviving Company shall maintain laws as in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength as of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance hereof shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained continue in full force and effecteffect with respect to Merger Matters, for its full termwithout any amendment thereto, and to honor all of its obligations thereunderthe extent such rights are consistent with the DGCL.
(c) The provisions of this Section 6.08 are (i) intended Surviving Corporation or the Parent shall cause to be maintained, for a period of not less than six years from the benefit ofEffective Time, General Physics' current directors' and shall be enforceable by, each Indemnitee, his officers' liability insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time and acts by or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all functions of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not Special Committee prior to or in substitution for any such claims under such policies.at the
Appears in 1 contract
Samples: Merger Agreement (National Patent Development Corp)
Indemnification and Insurance. (a) From For a period of one year following the Closing Date, NXT and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, (i) NXT Shareholders hereby agree to indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary each of the Companyofficers, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request agents and directors of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer as of the Company Closing Date against any loss, liability, claim, damage or such Subsidiary or expense (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a directorincluding, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior but not limited to, the Effective Time (including any Action relating and all expense whatsoever reasonably incurred in whole investigating, preparing or in part to the Transactions defending against any litigation, commenced or relating to the enforcement of this provision threatened or any other indemnification or advancement right of any Indemniteeclaim whatsoever), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against which it or they may become subject to or rising out of or based on any liability that by virtue of any rule of law attaches to such Indemnitee inaccuracy appearing in respect of any fraud or dishonesty of which such Indemnitee is guilty misrepresentation made in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is paragraph shall survive the Closing and consummation of the transactions contemplated hereby and termination of this Agreement; and The Company hereby agrees to indemnify NXT, each of the agents, and the NXT Shareholders as of the Closing Date against any loss, liability, claim, damage or expense (including, but not prior limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claim whatsoever), to which it or they may become subject arising out of or based on any inaccuracy appearing in substitution or misrepresentation made in this Agreement. The indemnification provided for any such claims under such policiesin this paragraph shall survive the Closing and consummation of the transactions contemplated hereby and termination of this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (NXT Nutritionals Holdings, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify indemnify, defend and hold harmless each individual current and former director, officer and employee of the Company and any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the Effective Time is, request or at any time prior to for the Effective Time was, a director or officer benefit of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to against all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action actual or threatened claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole relating to or in part, (A) the fact that an Indemnitee is connection with any action or was a director or officer of omission relating to their position with the Company or such Subsidiary its Subsidiaries occurring or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, alleged to have occurred before or at any time prior to, the Effective Time (including any Action Claim relating in whole or in part to this Agreement or the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of limitation of liability, exculpation, indemnification and exculpation from liabilities for acts or omissions occurring at or advancement of expenses as provided in (A) the Company Charter Documents and the respective organizational documents of each of the Company’s Subsidiaries as currently in effect and (B) any indemnification agreements with an Indemnitee (but only to the extent such indemnification agreement was made available to Parent prior to the Effective Time date hereof), which shall in each case survive the Transactions and continue in full force and effect to the extent permitted by applicable Law.
(and rights for advancement of expensesb) as provided in the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from From and after the Effective Time, Parent shall, and shall causecause the Surviving Corporation to, pay and advance to an Indemnitee any expenses (including fees and expenses of legal counsel) in connection with any Claim relating to any acts or omissions covered under this Section 5.8 or the enforcement of an Indemnitee’s rights under this Section 5.8 as and when incurred to the fullest extent permitted under applicable Law, provided that the memorandum person to whom expenses are advanced provides an undertaking in accordance with applicable Law to repay such expenses if it is ultimately determined by a court of association and bye-laws competent jurisdiction that such Indemnitee is not entitled to indemnification for such matter (but only to the extent such repayment is required by applicable Law, the Company Charter Documents, applicable organizational documents of Subsidiaries of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and or applicable indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for agreements).
(c) For a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be maintained in effect coverage not materially less favorable than the coverage provided a policy for by the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the date hereof maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time either through the Company’s existing insurance provider or occurring prior to another provider reasonably selected by Parent; provided, however, that, after the Effective Time, including Parent shall not be required to pay annual premiums in excess of 300% of the Transactions. If annual premium currently paid by the Company in respect of the coverages required to be obtained pursuant hereto, but in such prepaid case shall purchase as much coverage as reasonably practicable for such amount; provided, further, that in lieu of the foregoing insurance coverage, the Company may purchase “tail” policy has been obtained insurance coverage, at a cost no greater than the aggregate amount which Parent would be required to spend during the six—year period provided for in this Section 5.8(c), that provides coverage not materially less favorable than the coverage described above to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company, it shall be deemed Company and its Subsidiaries as of the date hereof with respect to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and matters arising on or before the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderEffective Time.
(cd) The provisions of this Section 6.08 5.8 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, heirs and his or her Representatives representatives from and after the Effective Time, and (ii) in addition to, and not in substitution forfor or limitation of, any other rights to indemnification or contribution that any such individual Person may have under the Company Organizational Documents, by Contract, contract or otherwise. The obligations of Parent and the Surviving Company Corporation under this Section 6.08 5.8 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, 5.8 applies unless (xA) such termination or modification is required by applicable Law or (yB) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.085.8).
(de) In the event that Parent, the Surviving Company, Corporation or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company corporation or entity of such consolidation, amalgamation, consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or and the Surviving Company Corporation shall assume all of the obligations thereof set forth in this Section 6.085.8.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Duke Energy CORP)
Indemnification and Insurance. (a) From and after the Effective Time, Parent and the Surviving Company Corporation shall, jointly and severally (and Parent shall cause the Surviving Company Corporation to), (i) indemnify indemnify, defend and hold harmless harmless, to the fullest extent authorized or permitted under the DGCL or other applicable Law, each individual Person who at the Effective Time isis now, or has been at any time prior to the date of this Agreement or who becomes such prior to the Effective Time wasTime, a an officer, director or officer employee of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company Subsidiaries (each, together with such Person’s heirs, executors and administratorsindividually, an “IndemniteeIndemnified Party,” and, and collectively, the “IndemniteesIndemnified Parties”) against any and all losses, claims, damages, costs, expenses (including attorneys’ fees and disbursements), obligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges), fines, liabilities, judgments, and amounts that are paid in settlement (collectively, “Indemnified Liabilities”), paid or incurred in connection with investigating, defending, serving as a witness with respect to all claimsor otherwise participating in (and including preparation for any of the foregoing) any pending, liabilitiesthreatened, losses, damages, judgments, fines, penalties, costs asserted or completed Proceeding (including amounts paid in settlement any Proceeding brought by an Indemnified Party under this Section 6.7, any action on appeal, or compromiseany arbitration or other alternative dispute resolution mechanism), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, civil or criminal, administrativeand whether instituted by the Company, the Surviving Corporation, any Governmental Entity or investigativeany other party (each, an “Indemnity Proceeding”), whenever asserted, based on or arising out of, in whole or in partpart on, (A) or arising in whole or in part out of, or pertaining in whole or in part to the fact that an Indemnitee such Person is or was a an officer or director or officer of the Company or such any Company Subsidiary (or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken served at the request of the Company or such Subsidiary (including in connection with serving at the request of the any Company or such Subsidiary as a director, officer, employee, agent, trustee, officer or fiduciary trustee of another Person (including any employee benefit plan)), in each case under clause (A) at or (B), at, or at any time prior to, to the Effective Time (including acts or omissions occurring in connection with this Agreement, any Action relating of the Transactions or any Benefit Plan), in any such case whether asserted or claimed prior to, at or after, the Effective Time. In the event that any claim for Indemnified Liabilities is asserted or made by an Indemnified Party, any determination required to be made with respect to whether such Indemnified Party’s conduct complies with the standards set forth under the DGCL or other applicable Law shall be made by independent legal counsel selected by such Indemnified Party and reasonably acceptable to the Surviving Corporation (it being understood and agreed that the burden of proof shall be on Parent and the Surviving Corporation to establish that such Indemnified Party does not so comply). Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection with any Indemnity Proceeding as such expenses (including attorneys’ fees and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor (accompanied by invoices or other relevant documentation), provided (if and to the extent required by the DGCL or other applicable Law) that such Indemnified Party undertakes to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law with respect to such Indemnity Proceeding. In the event any Indemnity Proceeding is brought against any Indemnified Party (and in which indemnification could be sought by such Indemnified Party hereunder), Parent and the Surviving Corporation shall each use commercially reasonable efforts to assist in the vigorous defense of such matter, provided that neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in such Indemnity Proceeding without the prior written consent of such Indemnified Party if and to the extent the terms of the proposed settlement, compromise or judgment involve any non-monetary relief from such Indemnified Party.
(b) All rights to indemnification and advancement of expenses existing in favor of, and all exculpations and limitations of the personal liability of, the directors, officers, employees, fiduciaries and agents of any of the Company and the Company Subsidiaries in the Company Certificate or Company By-Laws (or comparable organizational documents of the Company Subsidiaries) as in effect as of the Effective Time with respect to matters occurring at or prior to the Effective Time, including the Merger and the other Transactions, shall survive the Merger and shall continue in full force and effect thereafter, without any amendment thereto. The Surviving Corporation shall not, and Parent shall cause the Surviving Corporation not to, distribute or dispose of assets in a manner that would render the Surviving Corporation unable to satisfy any of its obligations pursuant to this Section 6.7.
(c) For a period of six (6) years after the Effective Time, the Surviving Corporation shall, and shall cause its Subsidiaries to, and Parent shall cause the Surviving Corporation and its Subsidiaries to, maintain in effect the current directors’ and officers’ liability insurance policies maintained by or for the Company and/or the Company Subsidiaries for the benefit of those Persons who are covered by such policies as of the Effective Time with respect to claims arising in whole or in part to the Transactions from matters occurring or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions allegedly occurring at or prior to the Effective Time (provided that the Surviving Corporation and rights for advancement its Subsidiaries may substitute therefor policies of expenses) at least the same coverage containing terms and conditions that are at least as provided in beneficial to the Company Organizational Documents and the Organizational Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as beneficiaries of the date of this Agreement providing for indemnification between the Company current policies and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, with reputable carriers having a rating comparable to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect carrier); provided, however, that each of Parent and the Surviving Corporation and its Subsidiaries shall, and Parent shall cause the Surviving Corporation and its Subsidiaries to, first use commercially reasonable efforts to directors’ obtain a “tail” policy on substantially the same terms and officers’ liability insurance covering conditions for claims arising out of acts or omissions conduct occurring at or prior to the Effective Time and effective for claims asserted prior to or during the six (6)-year period referred to above (and, with respect to Indemnitees on claims made prior to or during such period, until final resolution thereof), and only if Parent and the Surviving Corporation and its Subsidiaries are unable, after exerting commercially reasonable efforts, to obtain such a “tail” policy, then Parent or the Surviving Corporation and its Subsidiaries will be required to obtain such coverage from such carriers in annual policies; and, provided, further that (i) if the existing policies expire or are terminated or cancelled during such six (6)- year period, each of Parent and the Surviving Corporation and its Subsidiaries shall, and Parent shall cause the Surviving Corporation and its Subsidiaries to, use commercially reasonable efforts to obtain policies of at least the same coverage containing terms and scope conditions that are at least as beneficial to the beneficiaries of the current policies with respect reputable carriers having a rating comparable to such coveragethe Company’s current carrier, (ii) Parent or the Surviving Corporation and its Subsidiaries, as the case may be, shall not be required to spend as an annual premium therefor an amount in amount, no less favorable to such individuals than those excess of such policies in effect on three hundred percent (300%) of the annual premium therefor as of the date of this Agreement; providedAgreement and (iii) if, howeverduring such six (6)-year period, that, if the annual premium for such insurance shall exceed coverage cannot be obtained at all or can be obtained only for an amount in excess of three hundred percent (300% %) of the current annual premium (such 300% thresholdtherefor, Parent or the “Maximum Premium”)Surviving Corporation and its Subsidiaries, which Maximum Premium is set forth in Section 6.08(b) of as the Company Disclosure Lettercase may be, then Parent shall provide or use commercially reasonable efforts to cause to be provided a policy for the applicable individuals with the best coverage obtained as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of much directors’ and officers’ liability insurance maintained by coverage as can be obtained for an amount equal to three hundred percent (300%) of the current annual premium therefor, on terms and conditions substantially similar to the Company’s and the Company Subsidiaries’ existing directors’ and its Subsidiaries officers’ liability insurance.
(d) Notwithstanding any provision of this Agreement to the contrary, prior to the Effective Time the Company shall be permitted to purchase prepaid “tail” policies in favor of the individuals referred to in Section 6.7(c) with respect to the matters existing or occurring described therein (provided that the annual premium therefor shall not exceed three hundred percent (300%) of the annual premium therefor as of the date of this Agreement). If and to the extent such policies have been obtained prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit ofParent shall, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition cause the Surviving Corporation to, maintain such policies in effect and not in substitution for, any other rights continue to indemnification or contribution that any such individual may have under honor the obligations of the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08thereunder.
(e) Nothing Parent shall, and shall cause the Surviving Corporation to, honor and perform in accordance with their terms all indemnification agreements in effect as of the date of this Agreement is intended tobetween the Company, shall be construed toon the one hand, and any director or shall releaseofficer of the Company, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to on the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policieshand.
Appears in 1 contract
Samples: Merger Agreement (Benihana Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Company Parent shall, and Parent shall cause the Surviving Company Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, Company or a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), ) and expenses (including fees and expenses of legal counsel) in connection with any Action claim, suit, action, proceeding or investigation (whether civil, criminal, administrative, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director director, officer or officer employee of the Company or such a Subsidiary of the Company or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, officer or agent employee of the Company or such a Subsidiary of the Company or taken at the request of the Company or such a Subsidiary of the Company (including in connection with serving at the request of the Company or such a Subsidiary of the Company as a director, officer, employee, agent, trustee, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any IndemniteeTransactions), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; Law and (ii) assume all obligations of the Company and such its Subsidiaries to the Indemnitees in respect of advancement of expenses, and indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) Time, as provided in (A) the Company Organizational Charter Documents and the Organizational Subsidiary Documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as hereof and (B) the indemnification agreements listed on Section 5.8(a) of the date of this Agreement providing for Company Disclosure Schedule, which indemnification between agreements shall survive the Company Transactions and any Indemnitee. continue in full force and effect in accordance with their respective terms, in each case, whether or not insurance covers such costs.
(b) Without limiting the foregoing, Parent, from and after the Effective Time, Parent shall cause, to cause the fullest extent permitted under applicable Law, the memorandum of association and bye-laws organizational documents of the Surviving Company Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, indemnification and advancement of expenses and indemnification than are set forth as of the date of this Agreement hereof in the Company Organizational Charter Documents, which provisions shall not be amended, repealed, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, pay all expenses (including fees and expenses of legal counsel) of each Indemnitee under this Section 5.8 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.8) as incurred to the fullest extent permitted under applicable Law; provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law.
(c) Parent shall cause the individuals serving as officers and directors of the Company immediately prior to the Effective Time who are then covered by the directors’ and officers’ liability insurance policy currently maintained by the Company (a correct and complete copy of which has heretofore been delivered to Parent) to be covered for a period of six (6) years from the Effective Time in a manner by such policy (provided that would adversely affect the rights thereunder Parent may substitute therefor policies of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with at least the same or better financial strength of the Company’s current carrier coverage and amounts containing terms and conditions that are not less advantageous in any material respect than such policy) with respect to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect that were committed by such officers and directors in their capacity as such; provided that in no event shall Parent be required to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals expend per year of coverage more than those 300% of such policies in effect on the amount currently expended by the Company per year of coverage as of the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium Agreement (such 300% threshold, the “Maximum PremiumAmount”) to maintain or procure insurance coverage pursuant hereto. If Parent is unable to maintain or obtain the insurance called for by this Section 5.8(c), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy obtain as much comparable insurance as available for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum PremiumAmount. The Company Indemnitees may prior be required to make reasonable application and provide reasonable and customary representations and warranties to applicable insurance carriers for the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies purpose of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If obtaining such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunderinsurance.
(cd) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 5.8 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any 5.8. The provisions of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.085.8 are intended to be for the benefit of each Indemnitee and his or her heirs.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (Nymagic Inc)
Indemnification and Insurance. (a) From The articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective TimeTime in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who at the Effective Time were directors, officers, employees or agents of the Surviving Company shallCompany, and unless such modification is required after the Effective Time by law.
(b) Parent shall cause the Surviving Company to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company, a Subsidiary of the Company, or any other Person in which the Company or any of its Subsidiaries owns any equity interests at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee)Corporation, to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against law or under the Surviving Corporation's articles of incorporation or by-laws or any liability that by virtue indemnification agreement in effect as of any rule of law attaches the date hereof, to such Indemnitee in respect of any fraud indemnify and hold harmless, each present and former director, officer or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court of Bermuda; and (ii) assume all obligations employee of the Company or any of its Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and such Subsidiaries amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (x) arising out of or pertaining to the Indemnitees in transactions contemplated by this Agreement or (y) otherwise with respect of indemnification and exculpation from liabilities for to any acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) "Indemnification Liabilities"), to the same extent as provided in the Company Organizational Documents and the Organizational Documents Company's articles of such Subsidiaries incorporation or by-laws or any applicable contract or agreement as in effect on the date of this Agreement or hereof, in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified each case for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation (6) years from whether arising before or after the Effective Time in a manner that would adversely affect Time) and subject to the rights thereunder specific terms of the Indemniteesany indemnification contract, except as amendments may be required by applicable Law during such period.
(bi) For the six-year period commencing immediately after the Effective Time, the Surviving Company Corporation shall maintain assume and direct all the defense thereof, including settlement, and the Indemnified Parties shall cooperate in effect directors’ the defense of any such matter. An Indemnified Party shall have a right to participate in (but not control) the defense of any such matter with its own counsel and officers’ liability insurance from an insurance carrier with at its own expense. Notwithstanding the same or better financial strength right of the Company’s current carrier Surviving Corporation to assume and control the defense of such litigation, claim or proceeding, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such litigation, claim or proceeding, and the Surviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnified Party and the settlement discharges all rights against Indemnified Party with respect to directors’ such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification under this Section 6.06(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and officers’ the Surviving Corporation (but the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event (i) that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims and (ii) that any determination required to be made with respect to whether an Indemnified Party's conduct is entitled to indemnification hereunder, or complies with the standards set forth under the VSCA, the Company's articles of incorporation or by-laws or any such agreement, as the case may be, such determination shall be made by independent legal counsel of national reputation selected by such Indemnified Party and reasonably acceptable to Parent.
(c) In addition, Parent will provide, or cause the Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Company's current directors and officers an insurance covering acts or omissions and indemnification policy that provides coverage for events occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, (the "D&O Insurance") that is no less favorable than the existing policy pursuant to which such individuals than those of such policies in effect on directors and officers are covered or, if substantially equivalent insurance coverage is unavailable, the date of this Agreementbest available coverage; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premium. The Company may prior to the Effective Time purchase, for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 6.08(b) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 Corporation shall not be terminated or modified required to pay an annual premium for the D&O Insurance in excess of two hundred percent (200%) of the annual premium currently paid by the Company for such insurance, but in such a manner case shall purchase as to adversely affect the rights much of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to coverage as possible for such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08)amount.
(d) In This Section shall survive the event that Parentconsummation of the Merger at the Effective Time, is intended to benefit the Surviving CompanyIndemnified Parties, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the binding on all successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, Corporation and shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to enforceable by the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesIndemnified Parties.
Appears in 1 contract
Samples: Merger Agreement (International Flavors & Fragrances Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving 2.1 The Company shall, and Parent shall cause to the Surviving Company tomaximum extent permitted by law, (i) indemnify indemnify, defend and hold harmless each individual who at the Effective Time isLLCP Representative, LLCP and the employees, partners, principals, agents, attorneys, accountants, representatives and other Affiliates of LLCP (including, without limitation, LLCP Inc.) (collectively, the "LLCP PARTIES"), from and against all costs, expenses, liabilities, claims, judgments, damages and losses, including, without limitation, all attorneys' fees and the cost of any investigation and preparation incurred in connection therewith, incurred in connection with any threatened, pending or at completed action or proceeding, whether civil, criminal, administrative or investigative (collectively, "LIABILITIES AND COSTS"), arising out of or in any time prior way related to the Effective Time wasfact that any LLCP Party is or was a director, a director officer, employee or officer other agent of the Company or any subsidiary of the Company, a Subsidiary is or was serving as an observer of the CompanyBoard, or any other Person in which the Company is or any of its Subsidiaries owns any equity interests was serving at the request of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise), and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative, or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee, trustee, agent or agent fiduciary of the Company another corporation, partnership, joint venture, employee benefit plan, trust or such Subsidiary or taken at the request of the Company or such Subsidiary (including other enterprise and, in connection with any LLCP Party serving at the request of the Company or as such Subsidiary as a director, officer, employee, employee or other agent, trusteethat such LLCP Party acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company.
2.2 Upon request by any LLCP Party, or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law; provided that no Indemnitee shall be indemnified against any liability that by virtue of any rule of law attaches to such Indemnitee in respect of any fraud or dishonesty of which such Indemnitee is guilty in relation to the Company, as finally determined by the Supreme Court shall advance (within five (5) Business Days of Bermuda; such request) any and (ii) assume all obligations of the Company expenses, including, without limitation, any and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (and rights for advancement of expenses) as provided in the Company Organizational Documents all attorneys' fees and the Organizational Documents cost of any investigation and preparation incurred in connection with any matter for which such Subsidiaries as in effect on the date of this Agreement LLCP Party is or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed, or otherwise modified for a period of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of the Indemnitees, except as amendments may be required by applicable Law during such period.
(b) For the six-year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance from an insurance carrier with the same or better financial strength of the Company’s current carrier with respect entitled to directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnitees on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement; provided, however, that, if the annual premium for such insurance shall exceed 300% of the current annual premium (such 300% threshold, the “Maximum Premium”), which Maximum Premium is set forth in Section 6.08(b) of the Company Disclosure Letter, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be available at an annual premium not in excess of the Maximum Premiumindemnification hereunder. The Company may prior shall also indemnify each LLCP Party from and against any and all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party's rights under this SECTION 2, or under Applicable Law or the Effective Time purchaseCompany's charter or bylaws now or hereafter in effect relating to indemnification, or for an aggregate amount not to exceed the aggregate Maximum Premium for six (6) years, a six-year prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of recovery under directors’ ' and officers’ ' liability insurance policies maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions. If such prepaid “tail” policy has been obtained by the Company, it regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If, for any reason, the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any LLCP Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company, on the one hand, and LLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be deemed in addition to satisfy any liability the Company may otherwise have at law or under any other agreement, including, without limitation, the Securities Purchase Agreement, and such obligations shall extend, upon the same terms, to all obligations to obtain insurance pursuant to LLCP Parties. This SECTION 2 shall survive indefinitely the termination of this Section 6.08(b) and Agreement.
2.3 At any time that an LLCP Representative is serving on the Surviving Board, the Company shall use its reasonable best efforts to cause such policy to be maintained have in full place and shall maintain in force and effecteffect one or more directors and officers liability insurance policies providing at least $10,000,000 in insurance coverage for director liability, including coverage for its full term, and to honor all of its obligations thereunder.
(c) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs, and his or her Representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by Contract, or otherwise. The obligations of Parent and the Surviving Company under this Section 6.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.08 applies, unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.08 applies shall be third party beneficiaries of this Section 6.08).
(d) In the event that Parent, the Surviving Company, or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation, or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 6.08.
(e) Nothing in this Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers, or other employees, it being understood federal and agreed that the indemnification provided for in this Section 6.08 is not prior to or in substitution for any such claims under such policiesstate securities laws.
Appears in 1 contract
Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)
