Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law. (b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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. (c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage. (d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000. (e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 4 contracts
Samples: Merger Agreement (Individual Inc), Merger Agreement (Desktop Data Inc), Merger Agreement (Desktop Data Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations Initial Closing date:
(a) The Company shall include as part of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The its Certificate of Incorporation and By-laws Bylaws provisions relating to the indemnification of all current and former directors, officers, employees and agents of the Surviving Corporation will contain Company which are no less favorable than the provisions with respect to indemnification and elimination of liability for monetary damages set forth contained in the Company's Certificate of Incorporation and By-laws Bylaws as of Individual, which the date hereof. Such provisions will shall not be amended, repealed or otherwise modified for a period of not less than six years from after the Effective Time Initial Closing Date in any manner that would adversely affect the rights thereunder of individuals who, at who as of the Effective Time, date hereof were directors, officersoffices, employees or agents of Individualthe Company in respect to actions or omissions occurring at or prior to the Initial Closing Date (including, without limitation, actions or omissions which occur in connection with the transactions contemplated by this Agreement) unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation willThe Company shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawslaw, indemnify and hold harmless, harmless each present or and former director or officer director, officer, employee and agent of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action act or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) Initial Closing Date, in each case for a period of not less than six years after the date hereofInitial Closing Date. In the event of any such claim, action, suit, proceeding or investigation (investigation, whether arising before or after the Effective Time), Initial Closing Date (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will Initial Closing Date shall be reasonably satisfactory to the Surviving CorporationCompany, (ii) after the Effective TimeInitial Closing date, the Surviving Corporation will Company shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will Company shall cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will Company shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any 44 significant issue between the positions of any two or more Indemnified Partiesindemnified parties in which case this limitation shall not apply.
(c) For a the period of not less than six years after the Effective TimeInitial Closing Date, the Surviving Corporation will use all commercially reasonable efforts to Company shall maintain in effect, if available, effect directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors directors' and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, policy on terms no less favorable that those now applicable to negotiate directors and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation officers of the Merger at Company, provided that in no event shall the Effective Time, is intended Company be required to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns expend annually more than 150% of the Surviving Corporationamount that the Company spent for these purposes in the last fiscal year to maintain or procure insurance coverage pursuant hereto; and provided further that if the Company is unable to obtain the insurance called for by this section the Company will obtain as much comparable insurance as is available for such amount per year.
Appears in 3 contracts
Samples: Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp)
Indemnification and Insurance. (a) From The certificate of incorporation and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and Byby-laws of the Surviving Corporation will shall contain all the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents on the date hereof, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(ba) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate certificate of Incorporation incorporation or Byby-laws, indemnify and hold harmless, harmless each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the Contemplated Transactions or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; PROVIDED that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law; and (iii) the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and providedPROVIDED, -------- furtherFURTHER, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction with respect to any single action unless there is, under applicable standards of professional conduct, a conflict (as reasonably determined by such Indemnified Party's counsel) on any significant issue between the positions of any two or more Indemnified Parties, in which case each Indemnified Party with respect to whom such a conflict exists (or group of such Indemnified Parties who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.
(b) The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "COVERED PERSONS") with the Company's directors and officers existing at or before the Effective Time, provided that they have not been entered into in violation of the terms of this Agreement.
(c) For In addition, Parent shall provide, or cause the Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O INSURANCE") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directorsthe best available coverage; PROVIDED, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, howeverHOWEVER, that in no event will -------- ------- the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coveragesuch insurance, but in such case shall purchase as much such coverage as possible for such amount.
(d) Individual This SECTION 8.4 shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons. From and after the Effective Date, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this SECTION 8.4.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Paragon Trade Brands Inc), Stock Purchase Agreement (Ontario Teachers Pension Plan Board), Stock Purchase Agreement (Paragon Trade Brands Inc)
Indemnification and Insurance. (a) From The certificate of incorporation and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and Byby-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages substantially to the same effect as those set forth in the Certificate certificate of Incorporation incorporation and Bythe by-laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time Parent shall cause the Surviving Corporation willCorporation, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate certificate of Incorporation incorporation or Byby-laws, to indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's certificate of incorporation or by-laws 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)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and providedPROVIDED, -------- furtherFURTHER, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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, 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 retain one separate law firm.
(c) For 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O INSURANCE") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directorsthe best available coverage; PROVIDED, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, howeverHOWEVER, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times one and one-half of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coveragesuch insurance, but in such case shall purchase as much such coverage as possible for such amount.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 3 contracts
Samples: Merger Agreement (International Paper Co /New/), Merger Agreement (International Paper Co /New/), Merger Agreement (Shorewood Packaging Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at who on or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws as in effect at the Effective Time, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs cost or expenses expense (including attorneys' attorney's fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, PROVIDED that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and providedPROVIDED, -------- furtherFURTHER, that, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.such
Appears in 3 contracts
Samples: Merger Agreement (Premiere Technologies Inc), Merger Agreement (Xpedite Systems Inc), Merger Agreement (Premiere Technologies Inc)
Indemnification and Insurance. (a) From and In the event that during or after the Effective TimeTerm of Employment, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior Employee is made a party or is threatened to the date hereof be made a party to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time is involved in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding suit or investigationproceeding, whether civil, criminal, administrative or investigativeinvestigative ("proceeding"), to by reason of the extent arising out fact that he is or was a director or officer, employee or agent of or pertaining is or was serving at the request of Employer as a director or officer, employee or agent or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to any employee benefit plans, whether the basis of such proceeding is alleged action or omission in his or her an official capacity as a director, officer, employee or agent of Individual occurring prior or in any other capacity while serving as a director, officer, employee or agent, Employee shall be indemnified and held harmless by Employer to the Effective Time fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (including without limitation actions or omissions relating to but, in the Merger) for a period of six years after the date hereof. In the event case of any such claimamendment, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory only to the Surviving Corporationextent such amendment permits Employer to provide broader indemnification rights than said law permitted Employer to provide prior to such amendment) against all expenses, liabilities and losses (iiincluding attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) after reasonably incurred or suffered by Employee in connection therewith. Such right shall be a contract right and shall include the Effective Time, the Surviving Corporation will pay the reasonable fees and right to be paid by Employer expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate incurred in the defense of defending any such matterproceeding in advance of its final disposition; provided, however, that the Surviving -------- ------- Corporation will payment of such expenses incurred by Employee in his capacity as a director or officer (and not be liable for in any settlement effected other capacity in which service was or is rendered by Employee while a director or officer, including, without its written consent (which consent will not be unreasonably withheld); and providedlimitation, -------- further, that, service to an employee benefit plan) in advance of 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 will continue until the final disposition of any and all such claims. The Indemnified Parties as group may retain proceeding will be made only one law firm (in addition upon delivery to local counsel) to represent them with respect to any single action unless there isEmployer of an undertaking, under applicable standards by or on behalf of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with DesktopEmployee, to negotiate repay all amounts to so advanced if it should be determined ultimately that Employee is not entitled to be indemnified under this section or otherwise. Employer agrees that it will maintain Directors and secure a "tail" on its existing Directors, Officers Insurance during the Term of Employment and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
three (e3) This Section 5.09 will survive any termination of this Agreement years thereafter covering Employee and the consummation other officers and directors of Employer in the Merger at amount of not less than Six Million Dollars ($6,000,000). In the Effective Timeevent that such Directors and Officers Insurance is not commercially available to Employer, is intended to benefit IndividualEmployer will create a self-insurance reserve for all liabilities which would otherwise be covered by Directors and Officers Insurance in the amount of Six Million Dollars ($6,000,000), which reserve shall be maintained in a separate escrow account and used exclusively for payment of liabilities, judgments, settlements or claims against officers and directors of Employer, including Employee, which would otherwise have been the Surviving Corporation subject of Directors and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving CorporationOfficers Insurance.
Appears in 3 contracts
Samples: Employment Agreement (Comforce Corp), Employment Agreement (Comforce Corp), Employment Agreement (Comforce Corp)
Indemnification and Insurance. Employees ------------------------------------------
(a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will Newco shall contain the provisions with respect to indemnification and elimination limitation of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Bylaws of Individual, Caldera as of the date hereof which provisions will shall not be amended, repealed or otherwise modified for a period of six ten years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individual(i) the Contributed Companies or (ii) of SCO (A) to the extent involved in the Group Business and (B) provided they become Employees, officers or directors of Newco("Group Persons"), unless such modification is required by law.
(b) From and after the Effective Time, Newco shall honor, in all respects, all of the indemnity agreements entered into prior to the date hereof by SCO or any member of the Contributed Company Group with any Group Persons, whether or not such persons continue in its positions with Newco following the Effective Time. Following the Effective Time, Caldera's form of indemnification agreement shall be adopted as the form of indemnification agreement for Newco and all continuing officers and directors of Newco shall be afforded the opportunity to enter into such indemnification agreement, and shall be covered by such directors' and officers' liability insurance policies as Newco shall have in effect from time to time.
(c) After the Effective Time the Surviving Corporation Time, Newco will, jointly and severally, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawslaw, indemnify and hold harmless, subject to Section 5.18(g), each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") Group Persons against any --------------- costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, criminal administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual occurring prior SCO or any of the Contributed Companies arising out of or pertaining to the Effective Time (including without limitation actions or omissions relating to the Merger) transactions contemplated by this Agreement for a period of six years after the date hereofClosing Date. Notwithstanding the foregoing, the parties agree that claims against the Group Persons shall first be made against any directors' and officers' liability insurance, if any, then maintained by SCO or any of the Contributed Companies that provides coverage for such Group Persons. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (ia) any counsel retained by for the Indemnified Parties defense of the Group Persons for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationGroup Persons, (iib) after the Effective Time, the Surviving Corporation will Newco will, subject to Section 5.18(g), pay the reasonable fees and expenses of --------------- such counsel, promptly after statements therefor are received received, and (iiic) the Surviving Corporation Newco will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation Newco will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties Group Persons as a group may retain be defended by only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverageGroup Persons.
(d) Individual Newco shall use best effortspay all expenses, after consultation with Desktopincluding attorneys' fees, to negotiate that may be incurred by any Group Persons in enforcing the indemnity and secure a "tail" on other obligations provided for its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.benefit in this Section 5.18. -------------
(e) This Section 5.09 will survive In the event Newco or any termination of its respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or a substantial portion of its properties or assets to any person or entity, then, and in each such case, to the extent necessary to effectuate the purposes of this Agreement Section ------- 5.18 proper provision shall ---- be made so that the successors and the consummation assigns of Newco assume the obligations set forth in this Section 5.18. -------------
(f) The provisions of this Section 5.18 shall survive the ------------ Effective Time and are intended to be for the benefit of, and shall be enforceable by, each of the Merger at Group Persons and his or her heirs and representatives.
(g) Notwithstanding any provision of this Section 5.18 to the Effective Time------------ contrary, is intended Newco shall not assume and shall have no Liability relating to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns claims made by SCO optionees arising out of the Surviving Corporationrepurchase, sale, exchange or cancellation of SCO capital stock or options in connection with the SCO Transaction (other than its obligations under Section 1.3(a)(ii)) or ------------------ specifically relating to matters arising out of the SCO Retained Business.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Tarantella Inc), Agreement and Plan of Reorganization (Tarantella Inc)
Indemnification and Insurance. (a) From and after the Effective Time, subject to applicable Law, Parent will, and will cause the Surviving Corporation will fulfill and honor in all respects to, comply with the obligations of Individual which exist the Company under indemnification agreements between the Company and its directors and officers in effect immediately prior to the date hereof Effective Time and described in Section 5.13(a) of the Company Disclosure Letter. Subject to indemnify Individual's present and former directors and officers and their heirsapplicable Law, executors and assigns. The Certificate of Incorporation and By-laws the organizational documents of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth that are at least as favorable to the Indemnified Parties as those contained in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, as in effect on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at immediately prior to the Effective Time, were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.applicable Law. In the event any claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claims shall continue until final disposition of any and all such claims
(b) After During the period beginning at the Effective Time and ending on the sixth anniversary of the Effective Time, Parent shall cause the Surviving Corporation willCorporation, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaw, to indemnify and hold harmlessharmless each person who is as of the date hereof, each present has been at any time prior to the date hereof, or former director becomes prior to the Effective Time a director, officer or officer fiduciary of Individual the Company or any of its subsidiaries and his or her Subsidiaries (each such person, together with such person’s heirs, executors and assigns (collectivelyor administrators, the "an “Indemnified Parties"Party”) against any costs or costs, 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 investigativeinvestigative (a “Claim”), to whether asserted or claimed prior to, at or after the extent Effective Time, arising out of of, relating to or pertaining to in connection with any action or omission in his or her capacity as a director, officer, employee such occurring or agent of Individual occurring alleged to have occurred at or prior to the Effective Time Time, including any act or omission in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby. Each Indemnified Party shall also be entitled to advancement of expenses as incurred (including without limitation actions and not later that ten Business Days after receipt by Parent or omissions relating the Surviving Corporation of receipts therefor) to the Merger) fullest extent permitted under applicable Law, provided that such Indemnified Party undertakes to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim for a period which indemnification could be sought by any Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of six years after the date hereofsuch Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents. 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 will not affect the obligations of Parent except to the extent that Parent shall have been prejudiced as a result of such claimfailure) and shall deliver to Parent the undertaking contemplated by the applicable provisions of the DGCL, actionbut without any requirement for the posting of a bond. Without limiting the foregoing, suit, proceeding or investigation in the event any Claim is brought against any Indemnified Party (whether arising before or after the Effective Time), (i) any the Indemnified Party will cooperate reasonably with Parent, at Parent’s expense, in the defense of such matter and (ii) Parent shall have the right to control the defense of such matter and shall retain only one set of legal counsel selected by Parent and reasonably satisfactory to the Indemnified Party (plus one local counsel, if necessary) to represent all Indemnified Parties with respect to each such matter unless the use of one counsel to represent the Indemnified Parties would present such counsel with a conflict of interest, or the representation of all of the Indemnified Parties by the same counsel would be inappropriate due to actual 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 for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will Parties. Parent shall pay the all reasonable fees and expenses of all such counselcounsel for such Indemnified Parties. Notwithstanding the foregoing, promptly after statements therefor are received and (iii) nothing contained in this Section 5.13 shall be deemed to grant any right to any Indemnified Party which is not permitted to be granted to a director, officer or fiduciary of the Company under applicable Law, nor shall Parent or the Surviving Corporation will cooperate in be required to indemnify any of the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties to a greater extent than the Company would be required to as group may retain only one law firm (in addition of the date hereof pursuant to local counsel) 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 PartiesCompany Charter Documents.
(c) For The Surviving Corporation shall maintain the Company’s officers’ and directors’ liability insurance policies and fiduciary liability insurance policies in effect on the date of this Agreement (collectively, the “D&O Insurance”), for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable but only to the current directors of Individualextent related to actions or omissions occurring at or prior to the Effective Time; provided, however, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms no less advantageous to such former directors or officers from insurance carriers with financial strength ratings equal to or greater than the financial strength rating of the Company’s current insurance carrier and (ii) such substitution shall not result in gaps or lapses of coverage with respect to matters occurring prior to the Effective Time; provided, further, that in no event will -------- ------- shall the Surviving Corporation be required to expend more than an amount per year an equal to 250% of current annual premiums paid by the Company in the aggregate for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; and provided, further, that if the amount in excess of two times the annual premium currently paid premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Surviving Corporation shall procure and maintain for such six year period as much coverage as reasonably practicable for the Maximum Amount. Parent shall have the right to cause coverage to be extended under the D&O Insurance by Desktop for its directors obtaining a six year “tail” policy on terms and officers' liability insurance coverageconditions no less advantageous than those contained in the existing D&O Insurance.
(d) Individual This covenant is intended to be for the benefit of, and shall use best effortsbe enforceable by, after consultation with Desktopeach of the Indemnified Parties and their respective heirs and legal representatives. The indemnification and advancement of expenses provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to negotiate and secure a "tail" on its existing DirectorsLaw, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000Contract or otherwise.
(e) This Section 5.09 will survive any termination of this Agreement and In the consummation of the Merger at the Effective Time, is intended to benefit Individual, event that the Surviving Corporation or Parent, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person and shall not be the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of the Surviving CorporationCorporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.13.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.13 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.13 applies without the consent of such affected Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Electrical Services Inc), Merger Agreement (Miscor Group, Ltd.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at who on or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws as in effect at the Effective Time, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) Parent and the Surviving Corporation shall 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 before the date hereof.
(d) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Parent) on terms comparable to those now applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period officers of one year, at a total cost not to exceed $300,000the Company.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective TimeMerger, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Paxar Corp), Merger Agreement (International Imaging Materials Inc /De/)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under Laws, Parent shall, and shall cause the Surviving Corporation's Certificate of Incorporation or By-lawsEntity to, (i) indemnify and hold harmless, harmless each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") Person against 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 preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding or investigationprovide advancement of expenses with respect to each of the foregoing to, whether civilall Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, criminalindemnification of officers, administrative or investigative, to directors and employees and advancement of expenses contained in the extent arising out Organizational Documents of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring the Partnership and the General Partner immediately prior to the Effective Time (including without limitation actions Time, and ensure that the Organizational Documents of the Partnership and the General Partner or omissions relating to the Merger) any of their respective successors or assigns, if applicable, shall, 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after following the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and employees of the Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any single action unless there istime in a manner that would adversely affect the rights of such Indemnified Person as provided herein, under applicable standards of professional conductand shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent, a conflict on any significant issue between the positions of any two or more Indemnified PartiesSurviving Entity and the General Partner and their respective successors and assigns.
(cb) For The Surviving Entity, or Parent on behalf of the Surviving Entity, shall maintain in effect for a period of six years after following the Effective TimeTime the Parent’s current directors’ and officers’ liability insurance policies to the extent covering acts or omissions by the Partnership’s directors and officers occurring at or prior to the Effective Time with respect to Indemnified Persons (provided, that Parent or the Surviving Corporation will use all commercially reasonable efforts to maintain in effectEntity, if availableor Parent on behalf of the Surviving Entity, directors' may satisfy this requirement by renewing or extending such policies and officers' liability insurance covering those persons who may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable not materially less favorable to the current directors of IndividualIndemnified Persons); provided, however, that in no event will -------- ------- shall the Surviving Corporation Entity or Parent, as applicable, be required to expend pursuant to this Section 6.6(b) more than an amount per year an equal to 300% of current annual premiums allocated to the Partnership for such insurance (the “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, Parent or the Surviving Entity would be required to expend more than the Maximum Amount, Parent or the Surviving Entity, or Parent on behalf of the Surviving Entity, shall obtain the maximum amount of such insurance as is available for the Maximum Amount. If Parent, in excess its sole discretion elects, then, in lieu of two times the annual premium currently paid obligations of Parent or the Surviving Entity under this Section 6.6(b), Parent or the Partnership may (but shall be under no obligation to), prior to the Effective Time, purchase a prepaid “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by Desktop for its directors and officers' liability insurance coveragesuch Indemnified Persons in their capacity as such; provided, that in no event shall the cost of such policy exceed the Maximum Amount.
(dc) Individual The rights of any Indemnified Person under this Section 6.6 shall use best effortsbe in addition to any other rights such Indemnified Person may have under the Parent Organizational Documents, after consultation with Desktopthe Organizational Documents of each of the Partnership, to negotiate and secure a "tail" on its existing Directorsthe General Partner, Officers and Company Liability insurance policies for a period the Surviving Entity or any Subsidiary of one yearParent or the Partnership, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination indemnification agreements, or the DLLCA or DRULPA. The provisions of this Agreement and Section 6.6 shall survive the consummation of the Merger at the Effective Time, is transactions contemplated by this Agreement and are expressly intended to benefit Individualeach of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Corporation and Entity and/or the Indemnified PartiesGeneral Partner, and will or any of their respective successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, then, in each such case, to the extent necessary, a proper provision shall be binding on all made so that the successors and assigns of Parent, the Surviving CorporationEntity and/or the General Partner shall assume the obligations of Parent, the Surviving Entity and the General Partner set forth in this Section 6.6.
Appears in 2 contracts
Samples: Merger Agreement (Holly Energy Partners Lp), Merger Agreement (HF Sinclair Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six three years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent bought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective Certificate of Incorporation or By-Laws of the Company or the subsidiaries or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six three 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixthree-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 5.7(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 present or former director, officer or employee of the Company or any of its subsidiaries.
(c) The Surviving Corporation shall 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 before the Effective Time.
(d) For a period of six five years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies 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 those 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 directors of Individualpolicies; provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 300% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual provided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 300% of one year, at a total cost not to exceed $300,000the annual premium.
(e) From and after the Effective Time, Parent shall guarantee the obligations of the Surviving Corporation under this Section 6.4.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties. In the event that Parent or Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation (as the case may be) assume the obligations of Parent and the Surviving Corporation set forth in this Section.
Appears in 2 contracts
Samples: Merger Agreement (Laidlaw Inc), Merger Agreement (American Medical Response Inc)
Indemnification and Insurance. (a) From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurred, the Company (and after following the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(bCorporation) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, shall indemnify and hold harmlessharmless each Indemnitee against all claims, each present or former director or officer of Individual or any of its subsidiaries losses, liabilities, damages, judgments, inquiries, fines and his or her heirsreasonable fees, executors costs and assigns expenses, including attorneys’ fees and disbursements (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees“Costs”), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (an “Action”), to the extent arising out of or pertaining to any action (i) the fact that an Indemnitee is or omission in his or her capacity as a was an officer, director, officeremployee, employee fiduciary or agent of Individual the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including without limitation actions or omissions relating with respect to the Merger) for a period negotiation, execution, announcement, performance and consummation of six years all Transactions contemplated by this Agreement and all actions of each Indemnitee leading thereto and in furtherance thereof on behalf of the Company and holders of Shares), whether asserted or claimed prior to, at or after the date hereofEffective Time, to the fullest extent permitted under applicable Law. In the event of any such Action, (A) each Indemnitee will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation within ten (whether arising before 10) Business Days of receipt by the Surviving Corporation from the Indemnitee of a request therefor; provided, however, that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or after the Effective Time)Company Charter Documents, to repay such advances if it is ultimately determined by a court of competent jurisdiction that such person is not entitled to be indemnified by the Surviving Corporation as authorized by the DGCL, (iB) any without limiting the foregoing, the Indemnitees may retain one (1) independent legal counsel retained by the Indemnified Parties for any period after the Effective Time will be of national standing (provided that such engagement would not create a conflict of interest under applicable rules of ethics) reasonably satisfactory to Parent to represent all Indemnitees, and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnitees as promptly as statements therefor are received, (C) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnitee hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnitee otherwise consents and (D) the Surviving Corporation shall have the right to assume the defense of any such matter. If the Company or the Surviving Corporation determines such Indemnitee is not entitled to indemnification under this Section 5.8, the Indemnitee shall have the right, as contemplated by the DGCL, to require that such determination be reconsidered and determined by special, independent legal counsel selected by the Indemnitee and approved by the Company or the Surviving Corporation, as applicable, (iiwhich approval shall not be unreasonably withheld, conditioned or delayed), and who has not otherwise performed material services for the Company or the Surviving Corporation within the three (3) years preceding such selection to be paid by the Company or, after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matterCorporation; provided, however, that if it is determined that such Indemnitee is not entitled to indemnification by the Company (and following the Effective Time, the Surviving -------- ------- Corporation will not Corporation) under this Section 5.8, such Indemnitee shall be liable obligated to repay the Company or the Surviving Corporation, as applicable, the expenses incurred for any settlement effected without its written consent (which consent will not be unreasonably withheld); and providedsuch special, -------- furtherindependent legal counsel. For purposes of this Agreement, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-year period, all rights each individual who is entitled to indemnification pursuant to the Company Charter Documents, the DGCL or those indemnification agreements listed in respect Section 5.8(a) of the Company Disclosure Schedule at or at any such claim or claims will continue until time prior to the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition Effective Time shall be deemed to local counsel) 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 Partiesbe an “Indemnitee”.
(cb) For a period of six (6) years after the Effective Time, the respective certificates of incorporation and bylaws or similar organizational or governing documents of the Surviving Corporation will use and the Surviving Corporation’s Subsidiaries shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of Indemnitees for periods prior to and including the Effective Time than are currently set forth in the Company Charter Documents and the certificates of incorporation, bylaws, or similar organizational and governing documents of the Company Subsidiaries. From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor, in accordance with their respective terms, the covenants contained in this Section 5.8.
(c) Parent shall, or shall cause the Surviving Corporation to, maintain and extend all commercially reasonable efforts to maintain in effect, if available, existing officers’ and directors' and officers' ’ liability insurance covering those persons who are currently covered by Individual's Directorsof the Company (“D&O Insurance”) for a period of not less than six (6) years from and after the Effective Time with respect to claims arising in whole or in part from facts or events that actually or allegedly occurred on or before the Effective Time, Officers and Company Liability insurance policies on terms comparable to those applicable to including in connection with the current directors approval of Individualthe Transactions; provided, however, that Parent may substitute (or cause the Surviving Corporation to substitute) therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to the Indemnitees than the existing D&O Insurance (so long as such policies are provided by the Company’s current insurance carrier or by a carrier with a rating no lower than A.M. Best rating of A); and provided, further, that if the existing D&O Insurance expires or is terminated or cancelled during such period through no fault of Parent or the Surviving Corporation, then Parent shall, or shall cause the Surviving Corporation to, obtain and maintain substantially similar D&O Insurance (with such replacement policies to be provided by the Company’s current insurance carrier or by a carrier with a rating no lower than A.M. Best rating of A). Notwithstanding the foregoing, in no event will -------- ------- shall Parent be required to pay aggregate premiums for insurance under this Section 5.8(c) in excess of 200% of the most recent aggregate annual premiums paid by the Company for such purpose (the “Maximum Amount”), the true and correct amount of which is set forth in Section 5.8(c) of the Company Disclosure Schedule; and provided, further, that if Parent or the Surviving Corporation is unable to obtain the amount of insurance required by this Section 5.8(c) for such aggregate premium, Parent shall, or shall cause the Surviving Corporation to, obtain as much insurance as can be required to expend per year an amount obtained for aggregate premiums not in excess of two times the annual Maximum Amount. At the Company’s option, it may elect to obtain prepaid “tail” or “runoff” policies prior to the Effective Time covering a period of six (6) years from and after the Effective Time with respect to acts and omissions occurring on or prior to the Effective Time; provided that the premium currently paid by Desktop therefor does not exceed the Maximum Amount. In the event the Company purchases a “tail” or “runoff” policy prior to the Effective Time, Parent and the Surviving Corporation shall maintain such tail or runoff policy in full force and effect in lieu of all other obligations of Parent and the Surviving Corporation in the first sentence of this Section 5.8(c) for its directors so long as any such tail or runoff policy remains in full force and officers' liability insurance coverageeffect.
(d) Individual The rights of each Indemnitee hereunder shall use best effortsbe in addition to, after consultation with Desktopand not in limitation of, to negotiate and secure a "tail" on any other rights such Indemnitee may have under the certificates of incorporation or bylaws or other organization or governing documents of the Company or any of its existing DirectorsSubsidiaries or the Surviving Corporation or its Subsidiaries, Officers and any other indemnification arrangement, the DGCL or otherwise. Subsequent amendment of the certificates of incorporation, bylaws or other organizational or governing documents of the Company Liability insurance policies for a period or any of one year, at a total cost its Subsidiaries or of the Surviving Corporation or its Subsidiaries shall not to exceed $300,000diminish or impair the rights of any Indemnitee.
(e) This In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then and in each such case, proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, shall assume all of the applicable obligations set forth in this Section 5.09 will survive 5.8. In addition, the Surviving Corporation shall not distribute, sell, transfer or otherwise dispose of any termination of its assets in a manner that would reasonably be expected to render the Surviving Corporation unable to satisfy its obligations under this Section 5.8.
(f) The provisions of this Agreement and Section 5.8 shall survive the consummation of the Merger at the Effective Time, is Merger. The Indemnitees (and their respective successors and heirs) are intended to benefit Individual, the Surviving Corporation and the Indemnified Partiesthird party beneficiaries of this Section 5.8, and will this Section 5.8 shall not be binding on all amended in a manner that is adverse to the Indemnitees (including their respective successors and assigns heirs) or terminated without the consent of the Surviving CorporationIndemnitees (including their respective successors and heirs) affected thereby.
Appears in 2 contracts
Samples: Merger Agreement (Verizon Communications Inc), Merger Agreement (Terremark Worldwide Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under Laws, Parent shall, and shall cause the Surviving Corporation's Certificate of Incorporation or By-lawsEntity to, (i) indemnify and hold harmless, harmless each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") Person against 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 preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding or investigationprovide advancement of expenses with respect to each of the foregoing to, whether civilall Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, criminalindemnification of officers, administrative or investigative, to directors and employees and advancement of expenses contained in the extent arising out Organizational Documents of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring the Partnership and the General Partner immediately prior to the Effective Time (including without limitation actions Time, and ensure that the Organizational Documents of the Partnership and the General Partner or omissions relating to the Merger) any of their respective successors or assigns, if applicable, shall, 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after following the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and employees of the Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any single action unless there istime in a manner that would adversely affect the rights of such Indemnified Person as provided herein, under applicable standards of professional conductand shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent, a conflict on any significant issue between the positions of any two or more Indemnified PartiesPartnership and the General Partner and their respective successors and assigns.
(cb) For The Surviving Entity, or Parent on behalf of the Surviving Entity, shall maintain in effect for a period of six years after following the Effective TimeTime the Partnership’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnified Persons (provided, that the Surviving Corporation will use all commercially reasonable efforts to maintain in effectEntity, if availableor Parent on behalf of the Surviving Entity, directors' may substitute therefor policies with reputable carriers of at least the same coverage containing terms and officers' liability insurance covering those persons who conditions that are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable no less favorable to the current directors of IndividualIndemnified Persons); provided, however, that in no event will -------- ------- shall the Surviving Corporation Entity or Parent, as applicable, be required to expend pursuant to this Section 6.6(b) more than an amount per year an equal to 300% of current annual premiums paid by the Partnership for such insurance (the “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity, or Parent on behalf of the Surviving Entity, shall obtain the maximum amount of such insurance as is available for the Maximum Amount. If the Partnership or Parent, in excess its sole discretion elects, then, in lieu of two the obligations of the Surviving Entity under this Section 6.6(b), the Partnership or Parent may (but shall be under no obligation to), prior to the Effective Time, purchase a prepaid “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such; provided, that in no event shall the cost of such policy exceed six times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverageMaximum Amount.
(dc) Individual The rights of any Indemnified Person under this Section 6.6 shall use best effortsbe in addition to any other rights such Indemnified Person may have under the Parent Organizational Documents, after consultation with Desktopthe Organizational Documents of each of the Partnership, to negotiate and secure a "tail" on its existing Directorsthe General Partner, Officers and Company Liability insurance policies for a period the Surviving Entity or any Subsidiary of one yearParent or the Partnership, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination indemnification agreements, or the DLLCA or DRULPA. The provisions of this Agreement and Section 6.6 shall survive the consummation of the Merger at the Effective Time, is transactions contemplated by this Agreement and are expressly intended to benefit Individualeach of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Corporation and Entity and/or the Indemnified PartiesGeneral Partner, and will or any of their respective successors or assigns (i) consolidates with or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, then, in each such case, to the extent necessary, a proper provision shall be binding on all made so that the successors and assigns of Parent, the Surviving CorporationEntity and/or the General Partner shall assume the obligations of Parent, the Surviving Entity and the General Partner set forth in this Section 6.6.
Appears in 2 contracts
Samples: Merger Agreement (Noble Midstream Partners LP), Merger Agreement (Chevron Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate Articles of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation no less favorable than those set forth in the Certificate Articles of Incorporation and By-laws ByLaws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Articles of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate Articles of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to any action the transactions contemplated by this Agreement or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Mergery) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them otherwise 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 act or more Indemnified Parties.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, omissions occurring at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.or prior
Appears in 2 contracts
Samples: Merger Agreement (Safeway Inc), Merger Agreement (Safeway Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate Articles of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at or before the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Articles of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Articles of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, Parent or the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) Parent and the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that neither Parent nor the Surviving -------- ------- Corporation will not shall be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) Parent and the Surviving Corporation shall 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 before the Effective Time.
(d) For a period of six three years after the Effective Time, Parent shall maintain or cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Parent) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual provided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 150% of one year, at a total cost not to exceed $300,000the annual premium.
(e) This Section 5.09 will 5.7 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties, their heirs and their representatives.
Appears in 2 contracts
Samples: Merger Agreement (Autonomous Technologies Corp), Merger Agreement (Summit Technology Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, existing at the Effective Time, Time of individuals who at the Effective Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After the Effective Time Time, the Surviving Corporation willand Parent shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's and Parent's, as the case may be, Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present or and former director or officer director, officer, employee, fiduciary and agent of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including including, without limitation actions or omissions relating to limitation, the Merger) for a period of six years after the date hereoftransactions contemplated by this Agreement). In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving CorporationCorporation and Parent, (ii) after the Effective Time, the Surviving Corporation will and Parent shall pay the reasonable fees and expenses of such counsel, promptly counsel in a timely manner after statements therefor are received received, and (iii) the Surviving Corporation and Parent will cooperate in the defense of any such matter; provided, however, that neither the Surviving -------- ------- Corporation will not nor Parent shall be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period From and after the Effective Time, Parent and the Surviving Corporation shall honor all of the indemnity agreements entered into prior to the date hereof by Company with its respective officers and directors, whether or not such persons continue in their positions with Parent or the Surviving Corporation following the Effective Time.
(d) From and after the Effective Time until at least six years after the Effective Time, Parent shall, or shall cause the Surviving Corporation will to use all commercially reasonable its best efforts to maintain in effect, if available, effect directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directorsdirectors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent) of at least the same coverage and amounts, Officers and Company Liability insurance containing terms that are no less advantageous with respect to claims arising at or before the Effective Time than the Company's policies on terms comparable to those applicable in effect immediately prior to the current directors of Individual; Effective Time provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation Corporation, be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop Company for its directors and officers' liability insurance coveragesuch coverage in which event the Parent shall purchase such coverage as is available for such 150% of such annual premium.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Megatest Corp), Merger Agreement (Teradyne Inc)
Indemnification and Insurance. (a) From and after For a period of at least six years following the SuperMedia Effective Time, the certificate of incorporation and bylaws of the SuperMedia Surviving Corporation will fulfill Company shall contain provisions no less favorable with respect to exculpation and honor in all respects indemnification of the obligations (as of Individual which exist or prior to the date hereof to indemnify Individual's present and SuperMedia Effective Time) former directors and directors, officers and their heirs, executors and assigns. The Certificate employees of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth SuperMedia than are currently provided in the Certificate of Incorporation SuperMedia Charter and By-laws of Individualthe SuperMedia Bylaws, as applicable, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals who, at until the Effective Time, were directors, officers, employees expiration of the statutes of limitations applicable to such matters or agents of Individual, unless such amendment, modification or repeal is required by lawapplicable Law.
(b) After Without limiting the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate provisions of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' feesSection 6.8(a), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminalcriminal or administrative, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the SuperMedia Effective Time, a director or officer of SuperMedia or any SuperMedia Subsidiary or who is or was serving at the request of SuperMedia or any SuperMedia Subsidiary as a director or officer of another Person (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 or officer of SuperMedia or any SuperMedia Subsidiary, or of another Person at the request of SuperMedia or any SuperMedia Subsidiary, or (ii) this Agreement or any of the transactions contemplated by this Agreement, whether asserted or arising before or after the SuperMedia Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory shall cooperate and use their best efforts to the Surviving Corporation, (ii) defend against and respond thereto. From and after the Effective Time, Dex Surviving Company shall indemnify and hold harmless, as and to the Surviving Corporation will pay fullest extent permitted under applicable Law and any agreement set forth in Section 6.8 of the SuperMedia Disclosure Schedule (an “Indemnification Agreement”), each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reimbursement for reasonable fees and expenses incurred in advance of the final disposition of any claim, suit, proceeding or investigation upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement in connection with any such counselthreatened or actual claim, promptly after statements therefor are received and (iii) action, suit, proceeding or investigation. In the Surviving Corporation event of any such proceeding, each Indemnified Party will cooperate be entitled to advancement of expenses incurred in the defense of any the proceeding from Dex Surviving Company to the same extent such matter; provided, however, that Persons have the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent right to advancement of expenses from SuperMedia as of the date of this Agreement pursuant to the SuperMedia Charter and SuperMedia Bylaws or such Person’s Indemnification Agreement (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event provided that any claim or claims for indemnification Person to whom expenses are ------- asserted or made within advanced shall have provided an undertaking to repay such six-year period, all rights advances if it is finally determined that such Person is not entitled to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesindemnification).
(c) For SuperMedia may purchase prior to the SuperMedia Effective Time a fully pre-paid six-year tail policy providing coverage and benefits that is substantially equivalent to the current directors’ and officers’ liability insurance policies maintained on the date of this Agreement by SuperMedia (complete and accurate copies of which shall have been made available to Dex before such purchase). If such policies have been obtained, Dex Surviving Company shall or shall cause SuperMedia Surviving Company to maintain such policies in full force and effect. If SuperMedia does not obtain a tail policy, Dex Surviving Company shall cause to be maintained for a period of six years after the Effective Time, Closing Date the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, current directors' ’ and officers' ’ liability insurance covering those persons who are currently covered policies maintained by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of IndividualSuperMedia; provided, howeverthat Dex Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable from an insurance carrier with the same or better credit rating as SuperMedia’s current insurance carrier. Notwithstanding the foregoing, that in no event will -------- ------- the shall Dex Surviving Corporation Company or SuperMedia Surviving Company be required to expend per year for such policies an amount in excess of two times the annual premium currently paid by Desktop for its directors greater than 300% of the existing annual premium on SuperMedia’s current directors’ and officers' ’ liability insurance coveragepolicies (the “Maximum Amount”); provided, that if SuperMedia Surviving Company is unable to maintain or obtain the insurance called for by this Section 6.8(c), Dex Surviving Company shall cause SuperMedia Surviving Company to obtain as much comparable insurance as available for the applicable Maximum Amount.
(d) Individual In the event that Dex Surviving Company or SuperMedia Surviving Company or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, in each such case, Dex Surviving Company shall, and shall use best effortscause (as applicable) SuperMedia Surviving Company to, after consultation with Desktopcause proper provision to be made so that the successors and assigns of Dex Surviving Company or SuperMedia Surviving Company, to negotiate and secure a "tail" on its existing Directorsas applicable, Officers and Company Liability insurance policies for a period shall expressly assume the obligations of one year, at a total cost not to exceed $300,000such entity as set forth in this Section 6.8.
(e) This Section 5.09 will survive any termination The provisions of this Agreement Section 6.8 shall survive the SuperMedia Effective Time and the consummation of the Merger at the Effective Time, is are intended to be for the benefit Individual, the Surviving Corporation and the Indemnified Partiesof, and will shall be binding on all successors enforceable by, each Indemnified Party and assigns of the Surviving Corporationhis or her heirs and representatives.
Appears in 2 contracts
Samples: Merger Agreement (DEX ONE Corp), Merger Agreement (Supermedia Inc.)
Indemnification and Insurance. (a) From Parent and Merger Sub agree that all rights to indemnification and payment or reimbursement of fees and expenses incurred in advance of the final disposition of any claim related to acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in favor of the current or former directors or officers, as the case may be (the “Indemnified Parties”), of the Company or its Subsidiaries as provided in their respective certificate of incorporation or by-laws (or comparable organizational documents) shall survive the Merger and shall continue in full force and effect for a period of six (6) years from and after the Effective Time. For a period of six (6) years from and after the Effective Time, Parent and the Surviving Corporation shall (i) maintain in effect the current provisions regarding indemnification of officers and directors contained in the certificate of incorporation and by-laws (or comparable organizational documents) of each of the Company and its Subsidiaries and (ii) jointly and severally indemnify and hold harmless the Indemnified Parties to the fullest extent permitted by applicable Law against any losses, claims, damages, liabilities, costs, expenses (including advances for reasonable fees and expenses as incurred to the fullest extent permitted under applicable Law, provided the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification), judgments, fines and, subject to approval by Parent (which shall not be unreasonably withheld, delayed or conditioned), amounts paid in settlement in connection with any threatened or actual Action to which such Indemnified 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 such individual is or was a director or officer of the Company or any of its Subsidiaries, or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another person or (ii) this Agreement or any of the transactions contemplated hereby, whether asserted or arising before or after the Effective Time.
(b) For a period of six (6) years from and after the Effective Time, the Surviving Corporation will fulfill shall either cause to be maintained in effect the current policies of directors’ and honor officers’ liability insurance and fiduciary liability insurance maintained by the Company or its Subsidiaries, or provide substitute policies or purchase a “tail policy,” in all respects either case, of at least the obligations of Individual same coverage and amounts containing terms and conditions which exist prior are, in the aggregate, no less advantageous to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions Indemnified Parties with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed claims arising from facts or otherwise modified for a period of six years from the Effective Time in any manner events that would adversely affect the rights thereunder of individuals who, at occurred on or before the Effective Time, were directorsexcept that in no event shall the Surviving Corporation be required to pay, officerswith respect to such insurance policies, employees or agents in respect of Individualany one policy year more than three hundred percent (300%) of the annual premium paid by the Company for such insurance under the current policy year ending January 2009 (as set forth on Section 5.11(b) of the Company Disclosure Schedule, unless such modification the “Maximum Amount”), and if the Surviving Corporation is unable to obtain the insurance required by lawthis Section 5.11(b) it shall obtain as much comparable insurance as possible for an annual premium equal to the Maximum Amount.
(bc) After Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 5.11, upon learning of any such Action, shall promptly notify Parent thereof, but the Effective Time failure to so notify shall not relieve Parent or the Surviving Corporation willof any liability it may have to such Indemnified Party, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, except to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to such failure materially prejudices the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereofindemnifying party. In the event of any such claimAction, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any Parent or the Surviving Corporation shall have the right to assume the defense thereof, with counsel retained by reasonably acceptable to the Indemnified Parties (which acceptance shall not be unreasonably withheld, delayed or conditioned), and Parent and the Surviving Corporation shall not be liable to such Indemnified Parties for any period after legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the Effective Time will be reasonably satisfactory to the Surviving Corporationdefense thereof, (ii) after the Effective Time, except that if Parent or the Surviving Corporation will 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, or between the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Parent or the Surviving Corporation shall pay the all reasonable fees and expenses of such counsel, counsel for the Indemnified Parties promptly after as statements therefor are received received; provided, however, that Parent and (iii) the Surviving Corporation shall be obligated pursuant to this paragraph (c) to pay for only one firm of counsel for all Indemnified Parties in any 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 the defense of any such matter; provided, however, that matter and (iii) Parent and the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its their prior written consent (consent, which consent will shall not be unreasonably withheld), delayed or conditioned; and provided, -------- further, 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 will continue until the disposition of any Parent and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts shall not have any obligation hereunder to maintain in effect, any Indemnified Party if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors extent that a court of Individual; providedcompetent jurisdiction shall ultimately determine, howeverand such determination shall have become final, that the indemnification of such Indemnified Party in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid manner contemplated hereby is prohibited by Desktop for its directors and officers' liability insurance coverageapplicable Law.
(d) Individual The provisions of this Section 5.11 are intended to be for the benefit of, and shall use best effortsbe enforceable by, after consultation with Desktopeach of the Indemnified Parties and their heirs and legal representatives. Parent shall advance expenses, including reasonable fees and expenses of counsel, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period an Indemnified Party as incurred to the fullest extent permitted under applicable Law upon receipt from the applicable Indemnified Party of one year, at a total cost an undertaking to repay such advances if it is ultimately determined such person is not entitled to exceed $300,000indemnification.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation The rights of the Merger at Indemnified Parties and their heirs and legal representatives under this Section 5.11 shall be in addition to any rights such Indemnified Parties may have under the Effective Time, is intended to benefit Individual, certificate of incorporation or by-laws (or comparable organizational documents) of the Company or any of its Subsidiaries or applicable Law.
(f) In the event that either Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other persons, (ii) transfers fifty percent (50%) or more of its properties or assets to any person or (iii) enters into any similar transaction, then and in each case, proper provision shall be made so the Indemnified Parties, and will be binding on all applicable successors and assigns of or transferees assume the Surviving Corporationobligations set forth in this Section 5.11.
Appears in 2 contracts
Samples: Merger Agreement (Centennial Communications Corp /De), Merger Agreement (At&t Inc.)
Indemnification and Insurance. (a) From Parent and after the Effective Time, the Surviving Corporation will fulfill shall maintain in effect any and honor all exculpation, indemnification and advancement of expenses provisions of the Company Charter Documents and Company Subsidiary Charter Documents in all respects the obligations effect as of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers or in any indemnification agreements between the Acquired Companies and their heirsrespective current or former directors, executors officers, fiduciaries, agents or employees in effect as of the date hereof (which have previously been provided to Parent). Parent and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individualshall not, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time Time, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who, at immediately prior to the Effective Time, were current or former directors, officers, agents, fiduciaries or employees or agents of Individual, the Acquired Companies unless such amendment, repeal or modification is required by lawapplicable Law, and all rights to indemnification thereunder in respect of any Claim asserted or made within such period shall continue until the final disposition or resolution of such Claim.
(b) After During the period beginning at the Effective Time and ending on the sixth anniversary of the Effective Time, Parent and the Surviving Corporation willshall, jointly and severally, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaw, indemnify and hold harmlessharmless each person who is as of the date hereof, each present has been at any time prior to the date hereof, or former director becomes prior to the Effective Time a director, officer, fiduciary, agent or officer employee of Individual the Company or any of its subsidiaries and his or her Subsidiaries (each such person, together with such person’s heirs, executors and assigns (collectivelyor administrators, the "an “Indemnified Parties"Party”) against any costs or costs, 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 investigativeinvestigative (a “Claim”), to whether asserted or claimed prior to, at or after the extent Effective Time, arising out of of, relating to or pertaining to in connection with any action or omission in his or her capacity as a director, officer, employee such occurring or agent of Individual occurring alleged to have occurred at or prior to the Effective Time Time, including any act or omission in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby. Each Indemnified Party shall also be entitled to advancement of expenses as incurred (including without limitation actions and not later that ten Business Days after receipt by Parent or omissions relating the Surviving Corporation of receipts therefor) to the Merger) fullest extent permitted under applicable Law, provided that such Indemnified Party undertakes to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification. Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any Claim for a period which indemnification could be sought by any Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of six years after the date hereofsuch Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents. 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 will not affect the obligations of Parent except to the extent that Parent shall have been prejudiced as a result of such claimfailure) and shall deliver to Parent the undertaking contemplated by the applicable provisions of the DGCL, actionbut without any requirement for the posting of a bond. Without limiting the foregoing, suit, proceeding or investigation in the event any Claim is brought against any Indemnified Party (whether arising before or after the Effective Time), (i) any the Indemnified Party will cooperate reasonably with Parent, at Parent’s expense, in the defense of such matter and (ii) Parent shall have the right to control the defense of such matter and shall retain only one set of legal counsel selected by Parent and reasonably satisfactory to the Indemnified Party (plus one local counsel, if necessary) to represent all Indemnified Parties with respect to each such matter unless the use of one counsel to represent the Indemnified Parties would present such counsel with a conflict of interest, or the representation of all of the Indemnified Parties by the same counsel would be inappropriate due to actual 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 for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will Parties. Parent shall pay the all reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 counsel for such Indemnified Parties.
(c) For The Surviving Corporation shall maintain the Company’s officers’ and directors’ liability insurance policies and fiduciary liability insurance policies in effect on the date of this Agreement (collectively, the “D&O Insurance”), for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable but only to the current directors of Individualextent related to actions or omissions occurring at or prior to the Effective Time; provided, however, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms no less advantageous to such former directors or officers from insurance carriers with financial strength ratings equal to or greater than the financial strength rating of the Company’s current insurance carrier and (ii) such substitution shall not result in gaps or lapses of coverage with respect to matters occurring prior to the Effective Time; provided, further, that in no event will -------- ------- shall the Surviving Corporation be required to expend more than an amount per year an equal to 250% of current annual premiums paid by the Company in the aggregate for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; and provided, further, that if the amount in excess of two times the annual premium currently paid premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Surviving Corporation shall procure and maintain for such six year period as much coverage as reasonably practicable for the Maximum Amount. If requested in writing by Desktop for its directors the Company, Parent shall cause coverage to be extended under the D&O Insurance by obtaining a six year “tail” policy on terms and officers' liability conditions no less advantageous than the existing D&O Insurance, and such “tail” insurance coverageshall satisfy the provisions of this Section 5.13(c).
(d) Individual This covenant is intended to be for the benefit of, and shall use best effortsbe enforceable by, after consultation with Desktopeach of the Indemnified Parties and their respective heirs and legal representatives. The indemnification and advancement of expenses provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to negotiate and secure a "tail" on its existing DirectorsLaw, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000Contract or otherwise.
(e) This Section 5.09 will survive any termination of this Agreement and In the consummation of the Merger at the Effective Time, is intended to benefit Individual, event that the Surviving Corporation or Parent, or any of their respective successors or assigns, (i) consolidates with or merges into any other Person and shall not be the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of the Surviving CorporationCorporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.13.
(f) The obligations of Parent and the Surviving Corporation under this Section 5.13 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.13 applies without the consent of such affected Indemnified Party.
Appears in 2 contracts
Samples: Merger Agreement (Cameron International Corp), Merger Agreement (Natco Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.. 42
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent bought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective Certificate of Incorporation or By-Laws of the Company or the Subsidiaries 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will must be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 5.8(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 present or former director, officer or employee of the Company or any of its Subsidiaries.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies 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 those 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 directors of Individualpolicies; provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverageprovided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 200% of the annual premium.
(d) Individual From and after the Effective Time, Parent shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period guarantee the obligations of one year, at a total cost not to exceed $300,000the Surviving Corporation under this Section 5.8.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties. In the event that Parent or Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation (as the case may be) assume the obligations of Parent and the Surviving Corporation set forth in this Section.
Appears in 2 contracts
Samples: Merger Agreement (First Alert Inc), Merger Agreement (Sunbeam Corp/Fl/)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany's Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six seven years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Parent and Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent (x) arising out of or pertaining to (in whole or in part) the transactions contemplated by this Agreement or (y) otherwise with respect to (in whole or in part) any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Charter Documents or any applicable contract or agreement set forth in the Company Disclosure Schedule, as in effect on the date hereof, in each case for a period of six seven 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)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) the Parent and Surviving Corporation shall pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by applicable law, provided that the person to whom expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification,(iii) after the Effective Time, the Parent and the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iiiiv) the Surviving Corporation will cooperate use all commercially reasonable efforts to assist in the vigorous defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixseven-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements set forth in the Company Disclosure Schedule, (the employee parties under such agreements being referred to as the "Officer Employees") with the Company's directors and officers (including former directors and officers) existing at or before the Effective Time, provided such agreements have not been entered into or modified in violation of Section 4.01(f).
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers an insurance and indemnification policy with a reputable and financially sound insurer that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the policy maintained by the Company and its Subsidiaries as of the date hereof or, if substantially equivalent insurance coverage is unavailable, the most generally favorable coverage reasonably available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation Corporation, in the aggregate, shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors and officers' liability such insurance coverage.
(d) Individual plus a percentage equal to any cumulative increase in annual premiums for the same period in any D&O Insurance policy maintained by Parent), but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as is reasonably available for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.05.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, the Officer Employees and will their respective heirs and legal representatives, shall be binding on all successors and assigns of the Surviving Corporation and shall be enforceable by the Indemnified Parties.
(g) In the event the Company, Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its 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 the Surviving Corporation, as the case may be, or at Parent's option, Parent, shall assume the obligations set forth in paragraphs (a) and (b) of this Section.
Appears in 2 contracts
Samples: Merger Agreement (Autotote Corp), Merger Agreement (Scientific Games Holdings Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees directors or agents officers of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or and former director or officer of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will (which may be Xxxxxx, Halter & Xxxxxxxx LLP or otherwise) shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement with such Indemnified Party or applicable law, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be --------- ------- liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, provided further 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 will shall continue until the final disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the parties under such agreements being referred to as the "Covered Persons") with the Company's directors and officers existing at or before the Effective Time, provided such agreements do not violate Section 4.01(f).
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers (as defined to maintain in effectmean those persons insured under such policy) with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not -------- ------- be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 2 contracts
Samples: Merger Agreement (Scott Technologies Inc), Merger Agreement (Scott Technologies Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under Laws, Parent shall, and shall cause the Surviving Corporation's Certificate of Incorporation or By-lawsEntity to, (i) indemnify and hold harmless, harmless each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") Person against 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 preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified, proceeding or investigationprovide advancement of expenses with respect to each of the foregoing to, whether civilall Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, criminalindemnification of officers, administrative or investigative, to directors and employees and advancement of expenses contained in the extent arising out Organizational Documents of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring the Partnership and the General Partner immediately prior to the Effective Time (including without limitation actions Time, and ensure that the Organizational Documents of the Partnership and the General Partner or omissions relating to the Merger) any of their respective successors or assigns, if applicable, shall, 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after following the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and employees of the Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any single action unless there istime in a manner that would adversely affect the rights of such Indemnified Person as provided herein, under applicable standards of professional conductand shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent, a conflict on any significant issue between the positions of any two or more Indemnified PartiesSurviving Entity and the General Partner and their respective successors and assigns.
(cb) For The Surviving Entity, or Parent on behalf of the Surviving Entity, shall maintain in effect for a period of six years after following the Effective TimeTime the Partnership’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnified Persons (provided, that the Surviving Corporation will use all commercially reasonable efforts to maintain in effectEntity, if availableor Parent on behalf of the Surviving Entity, directors' may substitute therefor policies with reputable carriers of at least the same coverage containing terms and officers' liability insurance covering those persons who conditions that are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable no less favorable to the current directors of IndividualIndemnified Persons); provided, however, that in no event will -------- ------- shall the Surviving Corporation Entity or Parent, as applicable, be required to expend pursuant to this Section 6.6(b) more than an amount per year an amount in excess equal to 300% of two times the current annual premium currently premiums paid by Desktop the Partnership for its directors and officers' liability such insurance coverage(the “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity, or Parent on behalf of the Surviving Entity, shall obtain the maximum amount of such insurance as is available for the Maximum Amount.
(dc) Individual The rights of any Indemnified Person under this Section 6.6 shall use best effortsbe in addition to any other rights such Indemnified Person may have under the Parent Organizational Documents, after consultation with Desktopthe Organizational Documents of each of the Partnership, to negotiate and secure a "tail" on its existing Directorsthe General Partner, Officers and Company Liability insurance policies for a period the Surviving Entity or any Subsidiary of one yearParent or the Partnership, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination indemnification agreements, or the DLLCA or DRULPA. The provisions of this Agreement and Section 6.6 shall survive the consummation of the Merger at the Effective Time, is transactions contemplated by this Agreement and are expressly intended to benefit Individualeach of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Corporation and Entity and/or the Indemnified PartiesGeneral Partner, and will or any of their respective successors or assigns (i) consolidates with or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, then, in each such case, to the extent necessary, a proper provision shall be binding on all made so that the successors and assigns of Parent, the Surviving CorporationEntity and/or the General Partner shall assume the obligations of Parent, the Surviving Entity and the General Partner set forth in this Section 6.6.
Appears in 2 contracts
Samples: Merger Agreement (Green Plains Inc.), Merger Agreement (Green Plains Partners LP)
Indemnification and Insurance. (a) From The By-Laws and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the By-Laws and Certificate of Incorporation and By-laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) GT and the Surviving Corporation shall honor and fulfill to the fullest extent permitted by applicable law the indemnification obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "Officer Employees") with the Company's directors and officers existing at or before the Effective Time which were provided to GT prior to the date hereof.
(d) For a period of six years after the Effective Time, GT shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to GT) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; provided, however, that in no event will -------- ------- shall GT or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual provided further, that if the premium for such coverage exceeds such amount, GT or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 150% of one year, at a total cost not to exceed $300,000the annual premium.
(e) From and after the Effective Time, GT shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and GT and shall be enforceable by the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Gt Interactive Software Corp), Merger Agreement (Microprose Inc/De)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will Merger Sub shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation similar to those set forth in the Certificate Articles of Incorporation and By-laws Bylaws of IndividualDHT, which provisions will Cerner shall not be amendedand shall cause Merger Sub not to amend, repealed repeal or otherwise modified modify for a period of six five (5) years from the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of IndividualDHT, unless such amendment, repeal or other modification is required by applicable law.
(b) After From and after the Effective Time, Cerner and Merger Sub agree that they will indemnify and hold harmless each past and present director and officer of DHT (when acting in such capacity) determined as of the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") ), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that DHT would have been permitted under Florida Law and its Articles of Incorporation or Bylaws in effect on the date of this Agreement to indemnify such person (and Cerner and Merger Sub shall also advance expenses as incurred to the fullest extent permitted under applicable Florida Law and the Articles of Incorporation and the Bylaws of DHT, provided that the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(c) Solely with respect to the information pertaining to Cerner and included in the Registration Statement (whether expressly or by incorporation by reference), Cerner shall indemnify, defend, and hold harmless Indemnified Parties against all costs, fees, or expenses (including reasonable attorneys' fees) judgments, fines, penalties, losses, damages, liabilities liabilities, and amounts paid in settlement in connection with any claim, action, suit, proceeding proceeding, or investigation, whether civil, criminaladministrative, administrative or investigative, to the extent arising out of or pertaining under the Securities Act or the Exchange Act or the state blue sky or securities Laws or any state blue sky or securities Laws based in whole or in part on (i) any untrue statement or alleged untrue statement of a material fact contained in such documents including any amendment or supplement to such document), (ii) any action omission or alleged omission to state in his such documents a material fact required to be stated therein or her capacity as a directornecessary to make the statements therein not misleading, officeror (iii) any violation of Cerner or any of its Subsidiaries of any such Laws in connection with such documents.
(d) Any Indemnified Party wishing to claim indemnification under Sections 7.10(b) or (c) upon learning of any such claim, employee action, suit, proceeding or agent investigation, shall promptly notify Cerner thereof in writing, but the failure to so notify shall not relieve Cerner of Individual occurring prior any liability it may have to the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereofsuch Indemnified Party if such failure does not materially prejudice Cerner. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by Cerner or Merger Sub shall have the right to assume the defense thereof, and Cerner shall not be liable to such Indemnified Parties for any period after legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the Effective Time will be defense thereof, except that if Cerner or Merger Sub elects not to assume such defense, or if there are any issues which raise material conflicts of interest between Cerner or Merger Sub and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to the Surviving CorporationCerner, (ii) after the Effective Time, the Surviving Corporation will and Cerner or Merger Sub shall pay the all reasonable fees and expenses of such counsel for the Indemnified Parties; provided, however, that Cerner shall be obligated pursuant to this paragraph (c) to pay for only one firm or counsel for all Indemnified Parties and, as applicable, for local counsel, promptly after statements therefor are received and provided, however, the costs of more than one firm or counsel shall be paid if the Indemnified Parties cannot be represented by one firm or counsel because of a conflict of interest, (iiiii) the Surviving Corporation Indemnified Parties will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will and (iii) Cerner shall not be liable for any settlement effected without its prior written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(ce) For a period of six five (5) years after the Effective TimeTime and to the extent available pursuant to the DHT directors and officers insurance policy, the Surviving Corporation will use all commercially reasonable efforts to Cerner or Merger Sub shall maintain in effect, if available, effect policies of directors' and officers' liability insurance covering those persons who are currently covered by IndividualDHT's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors directors' and officers' liability insurance coveragepolicy on terms (including the amounts of coverage and the amounts of deductibles, if any) that are no less favorable to them in any material respect than the terms now applicable to them under DHT's current insurance policies; provided that Cerner and Merger Sub shall not be required to pay an annual premium for such insurance in excess of 150% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(df) Individual If Cerner or Merger Sub or any of their successors or assigns (i) shall use best effortsconsolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, after consultation with Desktopcorporation or other entity, then and in each case, proper provisions shall be made so that the successors and assigns of Cerner or Merger Sub, as the case may be, shall assume all of the obligations set forth in this Section 7.10; provided, that the failure to negotiate and secure a "tail" on its existing Directorsmake such provisions shall not affect the validity of any such consolidation, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000merger or transfer.
(eg) This Section 5.09 will survive any termination The provisions of this Agreement and the consummation of the Merger at the Effective Time, is Section 7.10 are intended to be for the benefit Individualof, the Surviving Corporation and shall be enforceable by, each of the Indemnified Parties, their heirs and will be binding on all successors and assigns representatives.
(h) Notwithstanding the foregoing, neither Cerner nor Merger Sub shall have any obligation to indemnify or exculpate any officer or director or DHT from liability to Cerner, Merger Sub or Cerner's stockholders for any acts related to or arising out of the Surviving CorporationMerger, this Agreement or the transactions contemplated hereby if and to the extent such person's conduct was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct.
Appears in 2 contracts
Samples: Merger Agreement (Maxwell Bret R), Merger Agreement (Dynamic Healthcare Technologies Inc)
Indemnification and Insurance. (a) From and Immediately after the Effective Time, the Surviving Corporation will fulfill certificate of incorporation and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and Byby-laws of the Surviving Corporation will contain the provisions with respect to exculpation and indemnification that are at least as favorable to the present and elimination former officers and directors of liability for monetary damages set forth Xxxxxx and its Subsidiaries (each an “Indemnified Party”) as those contained in the Certificate of Incorporation Xxxxxx Charter and the Xxxxxx By-laws of Individualas in effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at immediately prior to the Effective Time, were directors, officers, employees or agents of IndividualXxxxxx, unless such modification is required by law.
(b) After the Effective Time . Parent shall cause the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmlessharmless each Indemnified Party against all claims, each present or former director or officer of Individual or any of its subsidiaries and his or her heirslosses, executors and assigns (collectivelyliabilities, the "Indemnified Parties") against any costs or expenses (including attorneys' fees)damages, judgments, finesinquiries, lossesfines and reasonable fees, claimscosts and expenses, damages, liabilities including attorneys’ fees and amounts paid in settlement disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission actions taken by them in his or her their capacity as a director, officer, employee officers or agent of Individual occurring directors at or prior to the Effective Time (including without limitation actions in connection with this Agreement and the transactions contemplated hereby), or omissions relating taken by them at the request of Xxxxxx, Parent, the Surviving Corporation or any of their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the Merger) fullest extent permitted under Applicable Law for a period of six years after the date hereofEffective Time. In Each Indemnified Party shall be entitled to advancement of expenses incurred in the event defense of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, from the Surviving Corporation will pay the reasonable fees and expenses within ten Business Days of such counsel, promptly after statements therefor are received and (iii) receipt by the Surviving Corporation will cooperate in from the defense Indemnified Party of any such mattera request therefor; provided, however, that any Indemnified Party 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. Neither Parent nor the Surviving -------- ------- Corporation will not shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim in which indemnification could be liable for any settlement effected sought by such Indemnified Party hereunder, without its written the consent (of such Indemnified Party, which consent will shall not be unreasonably withheld); and provided, -------- furtherconditioned or delayed, thatunless such settlement, in the event that any claim compromise or claims for indemnification are ------- asserted consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or made within such six-year period, all rights to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesclaim.
(cb) For a period of six years after Prior to the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, Parent shall purchase a directors' ’ and officers' ’ and fiduciary liability insurance covering those policy providing coverage for a period of at least six years following the Effective Time for persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable were officers and/or directors of Xxxxxx xxxxx to the current directors Effective Time for claims arising after the Effective Time from facts or events which occurred at or prior to the Effective Time, and in each case, which policy shall provide for at least the same coverage and amounts containing terms and conditions that are not less advantageous than the respective policies of IndividualXxxxxx, as in place at the Effective Time; provided, however, that in no event will -------- ------- the Surviving Corporation Parent be required to expend per in any year an amount in excess of two times 250% of the annual premium aggregate premiums currently paid by Desktop Xxxxxx for its directors such insurance (the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent will cause to be maintained the most advantageous policies of directors’ and officers' liability ’ insurance coverageobtainable for an annual premium equal to the Maximum Premium.
(c) In the event that Parent or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision will be made so that the successors and assigns of Parent assume the obligations set forth in this Section 6.4.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination The provisions of this Agreement and Section 6.4 are intended for the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Partiesof, and will be binding on all successors enforceable by, each Indemnified Party and assigns of the Surviving Corporationhis or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Indemnified Party may have had by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Andrew Corp), Merger Agreement (Commscope Inc)
Indemnification and Insurance. (a) From and after the Effective Time, Parent and the Surviving Corporation will fulfill shall jointly and honor in all respects severally indemnify the obligations of Individual which exist individuals who at or prior to the Effective Time were directors or officers of the Company or any of its Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time, to the fullest extent (A) required by the Company Charter Documents or Subsidiary Documents as in effect on the date hereof of this Agreement and (B) permitted under applicable Law. An Indemnitee shall notify Parent and the Surviving Corporation in writing promptly upon learning of any claim, action, suit, proceeding, investigation or other matter in respect of which such indemnification may be sought. In the event of any such claim, action, suit, proceeding or investigation, (x) each Indemnified Party will be entitled to indemnify Individual's present advancement of reasonable expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Parent or the Surviving Corporation within ten business days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a reasonably detailed request therefor; provided that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification, and former (y) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnitee hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnitee otherwise consents. Notwithstanding anything to the contrary, in no event shall Parent or the Surviving Corporation be liable for any settlement or compromise effected without its written consent. Each of Parent, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any claim, action, suit, proceeding or investigation and shall 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.
(b) The certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of individuals who were directors and officers and their heirs, executors and assigns. The prior to the Effective Time than are presently set forth in the Company’s Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individuallaws, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless any such modification is required by lawindividuals.
(bc) After 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 Surviving Corporation will, 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 years from the fullest extent permitted under applicable law or under Effective Time by such policy (provided that Parent may substitute therefor policies of at least the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities same coverage and amounts paid containing terms and conditions that are not less advantageous in settlement in connection any material respect than such policy) with any claim, action, suit, proceeding respect to acts or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual omissions occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereof. In the event of any that were committed by such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees officers and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate directors in the defense of any such mattertheir capacity as such; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation shall Parent be required to expend per year an of coverage more than 200% of the amount in excess currently expended by the Company per year of two times coverage as of the annual premium currently paid date of this Agreement (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto. If notwithstanding the use of reasonable best efforts to do so, Parent is unable to maintain or obtain the insurance called for by Desktop this paragraph, Parent shall obtain as much comparable insurance as available for its directors the Maximum Amount. The Indemnitees may be required to make reasonable application and officers' liability provide reasonable and customary representations and warranties to applicable insurance coveragecarriers for the purpose of obtaining such insurance.
(d) Individual The Indemnitees to whom this Section 5.8 applies shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination be third party beneficiaries of this Agreement and the consummation Section 5.8. The provisions of the Merger at the Effective Time, is this Section 5.8 are intended to be for the benefit Individual, the Surviving Corporation of each Indemnitee and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporationhis or her heirs.
Appears in 2 contracts
Samples: Merger Agreement (EnergySolutions, Inc.), Merger Agreement (Duratek Inc)
Indemnification and Insurance. (a) From and after the Effective TimeClosing, Buyer shall, and shall cause the Surviving Corporation will fulfill Business Companies to, to the fullest extent permitted by applicable Law, (i) indemnify and honor in all respects hold harmless each individual who at the obligations of Individual which exist Closing is, or at any time prior to the date hereof to indemnify Individual's present and former directors and officers and their heirsClosing was, executors and assigns. The Certificate a director or officer of Incorporation and By-laws of any Business Company (each, an “Indemnitee” and, collectively, the Surviving Corporation will contain the provisions “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, matters relating to his/her serving as a director or officer of such Business Company and existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Business Companies would have been required under their respective organizational documents as in effect on the date of this Agreement to indemnify such Person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law) and (ii) assume and undertake and agree to honor all obligations of the Business Companies or Parent and its Subsidiaries (solely to the extent related to the Business) to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from liabilities for acts or omissions relating to his/her serving as a director or officer of such Business Company and occurring at or prior to the Closing as provided in their respective organizational documents as in effect on the date of this Agreement or in any agreement set forth on Section 5.06 of the Parent Disclosure Letter in existence as of the date of this Agreement inuring to the benefit of any Indemnitee with respect to the Business and providing for indemnification.
(b) Without limiting the foregoing, Buyer, from and after the Closing unless otherwise required by applicable Law, shall cause the organizational documents of the Business Companies to contain provisions no less favorable to the Indemnitees in respect of the matters described in Section 5.06(a) with respect to exculpation of liabilities, indemnification and elimination advancement of liability for monetary damages expenses than are set forth in the Certificate organizational documents of Incorporation and By-laws the Business Companies as of Individualthe date of this Agreement, which provisions will shall not be amended, repealed or otherwise modified for in a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals whothe Indemnitees. In addition, at from and after the Effective TimeClosing, were directorsBuyer shall, officerswithout requiring a preliminary determination of entitlement to indemnification, employees or agents advance any expenses (including fees and expenses of Individual, unless such modification is required by law.
legal counsel) of any Indemnitee under this Section 5.06 (bincluding in connection with enforcing the indemnity and other obligations referred to in this Section 5.06) After the Effective Time the Surviving Corporation will, as incurred to the fullest extent permitted under applicable law required by such organizational documents.
(c) Buyer shall not, and shall cause the Business Companies not to, settle, compromise or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, consent to the extent entry of any judgment in any threatened or actual Action relating to any acts or omissions covered under this Section 5.06 (each, a “D&O Claim”) for which indemnification and advancement could be sought by an Indemnitee hereunder, unless such settlement, compromise or judgment includes an unconditional release of such Indemnitee from all liability arising out of such D&O Claim or pertaining such Indemnitee otherwise consents in writing to any action such settlement, compromise or omission in his or her capacity as a directorjudgment. Buyer, officer, employee or agent of Individual occurring prior to its Subsidiaries and the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will Indemnitees shall cooperate in the defense of any D&O 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 matter; providedconferences, howeverdiscovery proceedings, that hearings, trials or appeals, as may be reasonably requested in connection therewith.
(d) Buyer shall, prior to the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and providedClosing, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such purchase a six-year period, all rights prepaid “tail policy” provided by an insurance carrier with the same or better credit rating as the current policies of directors’ and officers’ liability insurance maintained by Parent and its Subsidiaries (solely to indemnification in respect of any the extent relating to the Business) or the Business Companies and on terms and conditions providing at least substantially equivalent benefits as such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them current policies 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 matters existing or more Indemnified Parties.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable occurring prior to the current directors of IndividualClosing, covering without limitation the Transactions; provided, however, that in no event will -------- ------- the Surviving Corporation shall Buyer be required to expend per year an amount pay annual premiums for such policy in excess of two times 300% of the most recent annual premium currently premiums paid by Desktop Parent and its Subsidiaries. Buyer shall cause such policy to be maintained in full force and effect, for its directors full term, and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on honor all of its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000obligations thereunder.
(e) This Section 5.09 will survive In the event that (i) Buyer or any termination of this Agreement its Subsidiaries or any of their respective successors or assigns (A) consolidates with or merges into any other Person and is not the consummation continuing or surviving corporation or entity of the Merger at the Effective Timesuch consolidation or merger or (B) transfers or conveys all or substantially all of its properties and assets to any Person, is intended to benefit Individualor (ii) Buyer or any of its Subsidiaries or any of its or their successors or assigns dissolves, the Surviving Corporation and the Indemnified Partiesthen, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Buyer or such Subsidiary shall assume all of the Surviving Corporationobligations thereof set forth in this Section 5.06.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to any Indemnitee, it being understood and agreed that the indemnification and advancement provided for in this Section 5.06 is not prior to or in substitution for any such claims under such policies.
(g) The parties’ obligations under this Section 5.06 shall continue in full force and effect for a period of six years from the Closing Date; provided, however, that if any D&O Claim (whether arising before, at or after the Closing) is brought against an Indemnitee on or prior to the sixth anniversary of the Closing Date, the provisions of this Section 5.06 shall continue in effect until the full and final resolution of such D&O Claim.
(h) The provisions of this Section 5.06 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, advancement or contribution that any such individual may have under the organizational documents of Parent or its Subsidiaries (to the extent relating to the Business) or the Business Companies, under any agreement providing for indemnification or advancement, by other contract or otherwise. The obligations of Buyer and its Subsidiaries under this Section 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 5.06 applies unless the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.06 applies shall be third-party beneficiaries of this Section 5.06).
Appears in 2 contracts
Samples: Equity Purchase Agreement (Endeavor Group Holdings, Inc.), Equity Purchase Agreement (Scientific Games Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns1. The Certificate articles of Incorporation incorporation and Byby-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation at least as protective to any officer or director as those set forth in the Certificate articles of Incorporation incorporation and Byby-laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After 2. The Company shall, to the fullest extent permitted under applicable law or under the Company's articles of incorporation or by-laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Fimalac-U.S. and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate articles of Incorporation incorporation or Byby-laws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent brought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective articles of incorporation or by-laws of the Company or the 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), (i) any counsel retained by in which there exists no conflict between the interests of the indemnifying party and the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective TimeParty, the Surviving Corporation will pay indemnifying party shall have a right to assume and direct all aspects of the reasonable fees defense thereof, including settlement, and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will Indemnified Party shall cooperate in the defense of any such matter; provided. 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, howeverwhich shall not be unreasonably withheld, or (ii) the terms of the settlement provide that the Surviving -------- ------- Corporation will not 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 (which consent will to such settlement shall not be unreasonably withheldwithheld or delayed. Any Indemnified Party wishing to claim indemnification under this Section 6.4(b); and provided, -------- further, 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 upon learning of any such claim claim, action, suit, proceeding or claims will continue until investigation, shall notify Fimalac-U.S. and the disposition Surviving Corporation (but the failure so to notify shall not relieve the indemnifying party from any liability which it may have under this Section 6.4(b) except to the extent of any damages caused by such failure to the indemnifying party), and all shall deliver to Fimalac-U.S. and the Surviving Corporation the undertaking contemplated by Section 8.75(e) of the Illinois Law. If the indemnifying party does not assume the defense of any such claims. The action, the Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period . The indemnity agreements of six years after the Effective Time, Fimalac-U.S. and the Surviving Corporation will use all commercially reasonable efforts to maintain in effectthis Section 6.4(b) shall extend, if availableon the same terms to, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable shall inure to the current directors benefit of Individual; providedand shall be enforceable by, howevereach person or entity who controls, that or in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess past controlled, any present or former director, officer or employee of two times the annual premium currently paid by Desktop for Company or any of its directors and officers' liability insurance coveragesubsidiaries.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) 3. This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Fimalac-U.S. and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties. In the event that Fimalac-U.S. or Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Fimalac-U.S. or the Surviving Corporation (as the case may be) assume the obligations of Fimalac-U.S. and the Surviving Corporation set forth in this Section.
Appears in 2 contracts
Samples: Merger Agreement (Duff & Phelps Credit Rating Co), Merger Agreement (Duff & Phelps Credit Rating Co)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at who on or prior to the Effective Time, Time were directors, officers, employees or agents of IndividualCompany, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation willCompany shall, to the fullest extent permitted under applicable law Applicable Law or under Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, Acquiror Parent and the Surviving Corporation shall, to the fullest extent permitted under Applicable Law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws as in effect at the Effective Time, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, investigation whether civil, criminal, administrative or investigative, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or the Securities Purchase Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shill not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain seek reimbursement pursuant to the foregoing indemnification arrangements for the fees and expenses of only one law firm (in addition to local counsel) to represent representing 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 Partiesaction.
(c) Acquiror Parent and the Surviving Corporation shall honor and fulfill in all respects the obligations of Company pursuant to indemnification agreements with Company's directors and of officers existing at or before the Effective Time.
(d) For a period of six years after the Effective Time, Acquiror Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by IndividualCompany's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Acquiror Parent) on terms comparable to those now applicable to the current directors and officers of IndividualCompany; provided, however, that in no event will -------- ------- shall Acquiror Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual provided further, that if the premium for such coverage exceeds such amount, Acquiror Parent or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 150% of one year, at a total cost not to exceed $300,000the annual premium.
(e) This Section 5.09 will 4.10 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualCompany, the Surviving surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Acquiror Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Central Tractor Farm & Country Inc), Merger Agreement (Jw Childs Equity Partners L P)
Indemnification and Insurance. Caldera ----------------------------------------
(a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will Newco and Caldera shall contain the provisions with respect to indemnification and elimination limitation of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Bylaws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from Caldera on the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by lawdate hereof.
(b) From and after the Effective Time, Newco and Caldera shall honor, in all respects, all of the indemnity agreements entered into prior to the date hereof by Caldera, with its respective officers and directors, whether or not such persons continue in their positions with Newco or Caldera following the Effective Time. Following the Effective Time, Caldera's form of indemnification agreement shall be adopted as the form of indemnification agreement for Newco and the Caldera Surviving Corporation shall be afforded the opportunity to enter into such indemnification agreement, and shall be covered by such directors' and officers' liability insurance policies as Newco shall have in effect from time to time.
(c) After the Effective Time the Surviving Corporation Time, Newco and Caldera will, jointly and severally, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawslaw, indemnify and hold harmless, each present or and former director or officer of Individual Caldera or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, criminal administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual occurring prior Caldera arising out of or pertaining to the Effective Time (including without limitation actions transactions contemplated by this Agreement or omissions relating to the Merger) transactions contemplated hereby for a period of six years after the date hereofof this Agreement. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (ia) any counsel retained by for the defense of the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationIndemnified Parties, (iib) after the Effective Time, the Surviving Corporation Caldera will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iiic) the Surviving Corporation Caldera will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation Caldera will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain be defended by only one law firm (in addition to local counsel) to represent them with respect to any single action 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.
(cd) For a the entire period of from and after the Effective Time until at least six years after the Effective Time, the Surviving Corporation Newco will cause Caldera to use all its commercially reasonable efforts to maintain in effect, if available, effect directors' and officers' liability insurance covering those persons who are currently covered by IndividualCaldera's Directorsdirectors' and officers' liability insurance policy (a copy of which has been heretofore delivered or made available to SCO) of at least the same coverage and amounts, Officers and Company Liability insurance containing terms that are no less advantageous with respect to claims arising at or before the Effective Time than Caldera's policies on terms comparable in effect immediately prior to the Effective Time to those applicable to the then current directors and officers of IndividualNewco and Caldera; provided, however, that in no event will -------- ------- the Surviving Corporation shall Newco or Caldera be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop Caldera for its directors and officers' liability insurance coverage.
(d) Individual such coverage in which event Newco shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase such coverage as is available for a period such 150% of one year, at a total cost not to exceed $300,000such annual premium.
(e) This Newco and Caldera shall pay all expenses, including attorneys' fees, that may be incurred by any Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 5.09 will survive 5.17. ------------
(f) In the event Newco or Caldera or any termination of its respective successors or assigns (a) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (b) transfers or conveys all or a substantial portion of its properties or assets to any person or entity, then, and in each such case, to the extent necessary to effectuate the purposes of this Agreement Section ------- 5.17, proper provision shall be made so that the successors and the consummation assigns of ---- Newco and Caldera assume the Merger at obligations set forth in this Section 5.17. ------------
(g) The provisions of this Section 5.17 shall survive the ------------ Effective Time, is Time and are intended to be for the benefit Individualof, the Surviving Corporation and shall be enforceable by, each officer and director of Caldera SCO and the Indemnified Parties, Contributed Company Group described in Sections 5.17 and will be binding on all successors his or her heirs and assigns of the Surviving Corporation------------- representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Tarantella Inc), Agreement and Plan of Reorganization (Tarantella Inc)
Indemnification and Insurance. (a) From The Bylaws and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Bylaws and Certificate of Incorporation and By-laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six three years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees directors or agents officers of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, harmless each present or and former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns the Company (collectively, the "Indemnified PartiesINDEMNIFIED 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (collectively, to the extent "ACTIONS"), (x) arising out of or pertaining to the transactions contemplated by this Agreement, or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or Bylaws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six three years after the date hereofEffective Time; PROVIDED, HOWEVER, that, in the event that any claim or claims for indemnification are asserted or made within such three-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 claim, action, suit, proceeding or investigation Action (whether arising before or after the Effective Time), the Indemnified Parties shall promptly notify the Surviving Corporation in writing, 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 in writing 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 will shall be reasonably satisfactory to the Surviving Corporation, ; (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction with respect to any single action 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.
, in which case each Indemnified Person with respect to whom such a conflict exists (cor group of such Indemnified Persons who among them have no such conflict) For a period of six years may retain one separate law firm in each applicable jurisdiction; (iii) after the Effective Time, the Surviving Corporation will use all commercially shall pay the reasonable efforts to maintain in effectfees and expenses of such counsel, if available, directors' promptly after statements therefor are received; and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- (iv) the Surviving Corporation will cooperate in the defense of any such Action. The Surviving Corporation shall not be required to expend per year an amount in excess liable for any settlement of two times the annual premium currently paid by Desktop for any such Action effected without its directors and officers' liability insurance coveragewritten consent.
(dc) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination The provisions of this Agreement and Section 5.6 shall survive the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Aarow Environmental Group Inc), Merger Agreement (Precis Smart Card Systems Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will Merger Sub shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation similar to those set forth in the Certificate Articles of Incorporation and By-laws Laws of IndividualCITATION, which provisions will Cerner shall not be amendedand shall cause Merger Sub not to amend, repealed repeal or otherwise modified modify for a period of six five (5) years from the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of IndividualCITATION, unless such amendment, repeal or other modification is required by applicable law.
(b) After From and after the Effective Time, Cerner and Merger Sub agree that they will indemnify and hold harmless each present director and officer of CITATION (when acting in such capacity) determined as of the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") ), against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, investigation whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action matters existing or omission in his occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions Time, whether asserted or omissions relating claimed prior to, at or after the Effective Time, to the Merger) for a period fullest extent that CITATION would have been permitted under Missouri Law and its Articles of six years after Incorporation or By-Laws in effect on the date hereofof this Agreement to indemnify such person (and Cerner and Merger Sub shall also advance expenses as incurred to the fullest extent permitted under applicable Missouri Law and the Articles of Incorporation and the By-Laws of CITATION, provided that the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification).
(c) Any Indemnified Party wishing to claim indemnification under paragraph (b) of this Section 7.11, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Cerner thereof in writing, but the failure to so notify shall not relieve Cerner of any liability it may have to such Indemnified Party if such failure does not materially prejudice Cerner. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by Cerner or Merger Sub shall have the right to assume the defense thereof, and Cerner shall not be liable to such Indemnified Parties for any period after legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the Effective Time will be defense thereof, except that if Cerner or Merger Sub elects not to assume such defense, or if there are any issues which raise material conflicts of interest between Cerner or Merger Sub and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to the Surviving CorporationCerner, (ii) after the Effective Time, the Surviving Corporation will and Cerner or Merger Sub shall pay the all reasonable fees and expenses of such counsel for the Indemnified Parties; provided, however, that Cerner shall be obligated pursuant to this paragraph (c) to pay for only one firm or counsel for all Indemnified Parties and, as applicable, for local counsel, promptly after statements therefor are received and provided, however, the costs of more than one firm or counsel shall be paid if the Indemnified Parties cannot be represented by one firm or counsel because of a conflict of interest, (iiiii) the Surviving Corporation Indemnified Parties will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will and (iii) Cerner shall not be liable for any settlement effected without its prior written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(cd) For a period of six five (5) years after the Effective TimeTime and to the extent available, the Surviving Corporation will use all commercially reasonable efforts to Cerner or Merger Sub shall maintain in effect, if available, effect policies of directors' and officers' liability insurance covering those persons who are currently covered by IndividualCITATION's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors directors' and officers' liability insurance coverage.
policy on terms (dincluding the amounts of coverage and the amounts of deductibles, if any) Individual that are no less favorable to them in any material respect than the terms now applicable to them under CITATION's current insurance policies; provided that Cerner and Merger Sub shall use best effortsnot be required to pay an annual premium for such insurance in excess of 150% of the last annual premium paid prior to the date hereof, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies but in such case shall purchase as much coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) This If Cerner or Merger Sub or any of their successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then and in each case, proper provisions shall be made so that the successors and assigns of Cerner or Merger Sub, as the case may be, shall assume all of the obligations set forth in this Section 5.09 will survive 7.11; provided, that the failure to make such provisions shall not affect the validity of any termination such consolidation, merger or transfer.
(f) The provisions of this Agreement and the consummation of the Merger at the Effective Time, is Section 7.11 are intended to be for the benefit Individualof, the Surviving Corporation and shall be enforceable by, each of the Indemnified Parties, their heirs and will be binding on all successors and assigns representatives.
(g) Notwithstanding the foregoing, neither Cerner nor Merger Sub shall have any obligation to indemnify or exculpate any officer or director or CITATION from liability to Cerner, Merger Sub or Cerner's stockholders for any acts related to or arising out of the Surviving CorporationMerger, this Agreement or the transactions contemplated hereby if and to the extent such person's conduct was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct.
Appears in 2 contracts
Samples: Merger Agreement (Citation Computer Systems Inc), Merger Agreement (Cerner Corp /Mo/)
Indemnification and Insurance. (a) From and after the Effective Time, ,
(a) Parent shall cause the Surviving Corporation will fulfill to, and honor in all respects the obligations Surviving Corporation shall, include as part of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The its Certificate of Incorporation and By-laws Bylaws provisions relating to the indemnification of all current and former directors, officers, employees and agents of the Surviving Corporation will contain Company which are no less favorable than the provisions with respect to indemnification and elimination of liability for monetary damages set forth contained in the Company's Certificate of Incorporation and By-laws of Individual, which Bylaws. Such provisions will shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at any time prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company in respect to actions or omissions occurring at or prior to the Effective Time (including, without limitation, actions or omissions which occur in connection with the transactions contemplated by this Agreement), unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or Bylaws and regardless of whether the Merger becomes effective, indemnify and hold harmless and after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action act or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) Time, in each case for a period of six years after the date hereof; provided, however, in no event shall Parent be obligated to provide indemnity to the Indemnified Parties pursuant to clause (y) immediately above which in the aggregate is in excess of $10,243,000. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Showscan Entertainment Inc), Agreement and Plan of Reorganization (Iwerks Entertainment Inc)
Indemnification and Insurance. (a) From The certificate of incorporation and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and Byby-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages substantially to the same effect as those set forth in the Certificate certificate of Incorporation incorporation and Bythe by-laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time Parent shall cause the Surviving Corporation willCorporation, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate certificate of Incorporation incorporation or Byby-laws, to indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or -------------------- expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the Transactions or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's certificate of incorporation or by-laws 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)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, ,that the Surviving -------- ------- Surviving Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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, 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 retain one separate law firm.
(c) For 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the ------------- existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will Parent and the -------- ------- the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times twice the annual premium currently paid by Desktop the Company for its directors and officers' liability such insurance coverage(which annual premium the Company represents to currently be $380,000), but in such case shall purchase as much such coverage as possible for such amount.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCor poration and shall be enforceable by the Indemnified Parties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc), Agreement and Plan of Merger (Novartis Inc)
Indemnification and Insurance. (a) From The Merger Agreement provides that the Surviving Corporation, for six and one-half years from and after the Effective Time, will indemnify, defend and hold harmless the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws directors of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
Company (b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Covered Parties") against any costs or expenses (including attorneys' fees), judgments, fines, all losses, claims, damages, liabilities liabilities, costs and expenses, including attorneys' fees and expenses, judgments, fines, losses and amounts paid in settlement in connection with any claim, actual or threatened action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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)Time (each a "Claim") to the extent that any such Claim is based on, (i) or arises out of, the fact that such person is or was an officer or director of the Company or, at the request of the Company, serving as an officer or director of another corporation, partnership, joint venture, trust or other enterprise, based on the Merger Agreement or the transactions contemplated thereby, in each case to the extent that such Claim pertains to any counsel retained by the Indemnified Parties for any period after matter of fact arising, existing or accruing prior to or at the Effective Time will be reasonably satisfactory Time, to the full extent permitted under applicable law or the Company's Articles of Incorporation, By-laws or indemnification agreements in effect on the date of the Merger Agreement. In addition, the Surviving CorporationCorporation will, (ii) for six and one-half years from and after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, effect directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable for the Covered Parties with respect to those applicable matters occurring prior to the Effective Time that is at least equal to the Company's current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors directors' and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of policies. STATE TAKEOVER LAWS Under the Merger at the Effective Time, is intended to benefit IndividualAgreement, the Surviving Corporation Company will take all reasonably necessary steps to exempt the transactions contemplated by the Merger Agreement, including the Merger, from the requirements of any applicable state takeover law and to assist Merger Sub in any challenge to the Indemnified Parties, and will be binding on all successors and assigns validity or applicability to such transactions of the Surviving Corporationany state takeover law.
Appears in 2 contracts
Samples: Proxy Statement (Jason Inc), Proxy Statement (Jason Inc)
Indemnification and Insurance. (a) From The By-Laws and after the Effective Time, charter of each of HealthAxis and the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws and charter of Individualeach of HealthAxis and BPOMS respectively, which provisions will shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of IndividualHealthAxis or BPOMS, respectively, unless such modification is required after the Effective Time by law.
(b) After Notwithstanding the Effective Time foregoing, HealthAxis and the Surviving Corporation willdo hereby agree, to the fullest extent permitted under applicable law or under HealthAxis’ or the Surviving Corporation's Certificate of Incorporation ’s charter or By-lawsLaws, to indemnify and hold harmless, each present and former director, officer or former director employee of HealthAxis or officer of Individual BPOMS, as applicable, or any of its subsidiaries and his or her heirs, executors and assigns their respective Subsidiaries (collectively, the "“Indemnified Parties"”) against any costs or expenses (including attorneys' ’ fees), 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, to the extent (x) arising out of or pertaining to the negotiation, authorization, execution or performance of this Agreement or any action document or omission in his agreement contemplated hereby, or her capacity as a directorthe transactions contemplated hereby or thereby, officer, employee or agent of Individual (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in HealthAxis’ or BPOMS’ charter or By-Laws, as applicable, or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for may retain any period after the Effective Time will be counsel reasonably satisfactory to the Surviving CorporationHealthAxis, (ii) after the Effective Time, HealthAxis shall advance to the Surviving Corporation will pay Indemnified Party the reasonable fees and expenses of such counsel, promptly after statements therefor are received and other reasonable costs incurred in the defense of such matter, and (iii) HealthAxis and the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that HealthAxis and/or the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-year six (6).year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will 7.13 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualHealthAxis, BPOMS, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and HealthAxis and shall be enforceable by the Indemnified Parties as third-party beneficiaries to this Agreement.
(d) HealthAxis and BPOMS shall, until at least the sixth anniversary of the Effective Time, cause to be maintained in effect, to the extent available, the policies of directors’ and officers’ liability insurance maintained by HealthAxis and the HealthAxis Subsidiaries as of the date hereof (or policies of at least the same coverage and amounts containing terms that are not less advantageous to the insured parties) with respect to claims arising from facts that occurred on or prior to the Effective Time, including without limitation all claims based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the Merger and any and all related events. In lieu of the purchase of such insurance by HealthAxis, HealthAxis may purchase a six (6) year non-cancellable extended reporting period endorsement (“Reporting Tail Coverage”) under HealthAxis’ existing directors’ and officers’ liability insurance coverage, providing that such Reporting Tail Coverage shall extend .the directors’ and officers’ liability coverage in force as of the date hereof for a period of at least six years from the Effective Time for any claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or any way involving acts or omissions occurring or prior to the Effective Time, including without limitation all claims based upon, arising out of, directly or indirectly resulting from, in consequence of, or any way involving this Agreement, all agreements contemplated hereby, the Merger or any and all related events. BPOMS shall cooperate with HealthAxis in obtaining such insurance coverage.
Appears in 2 contracts
Samples: Merger Agreement (BPO Management Services), Merger Agreement (Healthaxis Inc)
Indemnification and Insurance. (a) From and after the Effective Time, RoweCom and the Surviving Corporation will fulfill and honor in all respects the obligations of Individual NewsEdge which exist prior to the date hereof to indemnify IndividualNewsEdge's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of RoweCom and the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages at least as favorable to directors, officers, employees, and agents of NewsEdge as those set forth in the Certificate certificate of Incorporation incorporation and Byby-laws of IndividualNewsEdge, which provisions will not be amended, repealed repealed, or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees employees, or agents of IndividualNewsEdge, unless such modification is required by law.
(b) After the Effective Time RoweCom and the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate their Certificates of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual NewsEdge or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual NewsEdge occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationRoweCom, (ii) after the Effective Time, the Surviving Corporation RoweCom will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation RoweCom will cooperate in the defense of any such matter; provided, however, that -------- ------- RoweCom and the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by IndividualNewsEdge's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of IndividualNewsEdge; provided, however, that in no event will RoweCom -------- ------- or the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop RoweCom for its directors and officers' liability insurance coverage.
(d) Individual shall NewsEdge will use best efforts, after consultation with DesktopRoweCom, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000150,000.
(e) This Section 5.09 7.14 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualNewsEdge, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Newsedge Corp), Merger Agreement (McLagan Donald L)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, respectively, which provisions will shall not be amended, repealed or otherwise modified for a period of six five years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at any time prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six five 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, Parent or the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) Parent and the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that neither Parent nor the Surviving -------- ------- Corporation will not shall be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and providedPROVIDED, -------- furtherFURTHER, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixfive-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) Parent and the Surviving Corporation shall 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 before the Effective Time.
(d) For a period of six three years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Parent) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; providedPROVIDED, howeverHOWEVER, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual PROVIDED FURTHER, that if the annual premium would exceed such amount, Parent shall use best efforts, after consultation cause the Surviving Corporation to obtain a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, the maximum coverage available at a total cost not to exceed $300,000exceeding such amount.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, shall be binding, jointly and will be binding severally, on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall cause the Surviving Corporation will fulfill to (i) indemnify and honor in all respects hold harmless each individual who at the obligations of Individual which exist Effective Time is, or at any time prior to the date hereof Effective Time was, a director or officer of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to indemnify Individual's present all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and former directors expenses (including reasonable fees and officers expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of the Company, in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions), to the fullest extent permitted under applicable Law, and their heirs(ii) assume all obligations of the Company to the Indemnitees in respect of indemnification and exculpation from liabilities (and advancement of expenses) for acts or omissions occurring at or prior to the Effective Time as provided in the Company Charter Documents. Without limiting the foregoing, executors Parent, from and assigns. The Certificate after the Effective Time until all applicable statutes of Incorporation limitations have expired, shall cause the certificate of incorporation and By-laws bylaws of the Surviving Corporation will to contain provisions no less favorable to the provisions Indemnitees with respect to limitation of liabilities of directors and officers, indemnification and elimination advancement of liability for monetary damages expenses than are set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed or otherwise modified for in a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals whothe Indemnitees. In addition, at from and after the Effective Time, were directorsParent shall cause the Surviving Corporation to pay any reasonable expenses (including reasonable fees and expenses of legal counsel) of any Indemnitee under this Section 6.9 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.9) as incurred to the fullest extent US_ACTIVE:\44126911\17\77626.0003 permitted under applicable Law, officers, employees or agents of Individual, unless provided that the person to whom expenses are advanced provides an undertaking to repay such modification is advances to the extent required by lawapplicable Law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior Prior to the Effective Time (including without limitation actions or omissions relating to Time, the Merger) for a period of six years after the date hereof. In the event of any such claimCompany shall purchase, actionand, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after following the Effective Time, the Surviving Corporation will pay shall maintain with reputable and financially sound carriers, fully pre-paid six-year “tail” policies to the reasonable fees current directors’ and expenses officers’ liability insurance and fiduciaries liability insurance policies maintained as of the date hereof by the Company (the “Current Policies”), which tail policies shall cover 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 which tail policies shall contain at least the same coverage (including the scope and amount thereof) as, and contain terms and conditions that are equivalent to, the coverage set forth in the Current Policies; provided, however that (i) such counsel“tail” policies shall not require the payment of an aggregate premium in excess of two hundred-fifty percent (250%) of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the Current Policies, promptly after statements therefor are received (ii) prior to the Effective Time, the Company shall not enter into any Contract for a “tail” policy without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) and (iii) the Surviving Corporation will cooperate in the defense may substitute a policy or policies of any comparable coverage for such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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“tail” policies.
(c) For a period The provisions of six years after this Section 6.9 are (i) intended to be for the Effective Timebenefit 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 Person may have by contract or otherwise. The obligations of Parent and the Surviving Corporation will use all commercially reasonable efforts under this Section 6.9 shall not be terminated or modified in such a manner as to maintain adversely affect the rights of any Indemnitee to whom this Section 6.9 applies unless (1) such termination or modification is required by applicable Law or (2) the affected Indemnitee shall have consented in effectwriting to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9). Nothing in this Agreement is intended to, if availableshall be construed to or shall release, waive or impair any rights to directors' ’ and officers' liability ’ insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable claims under any policy that is or has been in existence with respect to the current directors of Individual; providedCompany or its officers or directors, howeverit being understood and agreed that the indemnification provided for in this Section 6.9 is not prior to, that or in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coveragesubstitution for, any such claims under any such policies.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and In the consummation of the Merger at the Effective Time, is intended to benefit Individualevent that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Parent or the Surviving CorporationCorporation shall assume all of the obligations thereof set forth in this Section 6.9.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist Seller pursuant to any indemnification agreements, if any, between Seller and its directors and officers existing prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assignshereof. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages not less favorable to officers and directors to those set forth in the Certificate of Incorporation and By-laws Bylaws of IndividualSeller, which provisions will not be amended, repealed or otherwise modified in a manner adverse to officers and directors for a period of six two years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of IndividualSeller, unless such modification is required by law.
(b) After the Effective Time Time, the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present or and former director or officer of Individual Seller or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (collectively, "Liabilities") in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual occurring prior Seller arising out of or pertaining to the Effective Time (including without limitation actions or omissions relating to the Merger) transactions contemplated by this Agreement for a period of six two 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationCorporation and Buyer, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixtwo-year period, all rights to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period Promptly after the Effective Time, Buyer shall enter into indemnification agreements with directors and officers of six years Seller who become directors or officers of Buyer or of the Surviving Corporation, which agreements shall be substantially identical to those which Buyer has entered with its current officers and directors.
(d) Buyer shall indemnify Andrew Edwards ("Edwards") xxxxxxx xxx Xxabixxxxxx in connection with any claim, action, suit or proceeding arising out of or pertaining to any personal guaranties of obligations of Seller listed on Schedule 5.11.
(e) From and after the Effective Time, the Surviving Corporation will use all commercially reasonable its best efforts to maintain in effectthe "Errors or Omissions" insurance policy currently maintained by Seller through May 15, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to 2001. In the current directors of Individual; provided, however, event that in no event will -------- ------- the Surviving Corporation be required is unable to expend per year an amount in excess of two times maintain such insurance, the annual premium currently paid by Desktop for Surviving Corporation will use its directors best efforts to procure similar insurance which shall cover all potential claims against Seller until and officers' liability insurance coverageincluding the Effective Date.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(ef) This Section 5.09 5.11 (i) will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, (ii) is intended to benefit IndividualSeller, the Surviving Corporation and the Indemnified Parties, and (iii) will be binding on all successors and assigns of the Surviving Corporation. If Buyer or the Surviving Corporation or any of their respective successors or assigns (x) consolidates with or merges into any other person or entity and shall not be the continuing or surviving person of such consolidation or merger or (y) transfers all or substantially all of its properties and assets to any person or entity, then and in each such case, proper provision shall be made so that such successors or assigns of Buyer or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.11.
Appears in 1 contract
Samples: Merger Agreement (Vizacom Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six ten years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at or before the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six ten 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, Parent or the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) Parent and the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that neither Parent nor the Surviving -------- ------- Corporation will not shall be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixten-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) Parent and the Surviving Corporation shall 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 before the Effective Time.
(d) For a period of six four years after the Effective Time, Parent shall maintain or cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Parent) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual provided further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 150% of one year, at a total cost not to exceed $300,000the annual premium.
(e) This Section 5.09 will 5.7 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Samples: Merger Agreement (Registry Inc)
Indemnification and Insurance. (a) From The By-Laws and after the Effective Time, Certificate of Incorporation of NGRU and the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the By-Laws and Certificate of Incorporation of NGRU and By-laws of Individual, BPOMS respectively which provisions will shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of IndividualNGRU or BPOMS, respectively, unless such modification is required after the Effective Time by law.
(b) After Notwithstanding the Effective Time foregoing, NGRU and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under NGRU's or the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director employee of NGRU or officer of Individual BPOMS, as applicable, or any of its subsidiaries and his or her heirs, executors and assigns their respective Subsidiaries (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in NGRU's or BPOMS's Certificate of Incorporation or By-Laws, as applicable, or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for may retain any period after the Effective Time will be counsel reasonably satisfactory to the Surviving CorporationNGRU, (ii) after the Effective Time, NGRU shall advance to the Surviving Corporation will pay Indemnified Party the reasonable fees and expenses of such counsel, promptly after statements therefor are received and other reasonable costs incurred in the defense of such matter, and (iii) NGRU and the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that NGRU and/or the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-six (6) year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will 6.13 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualNGRU, BPOMS, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and NGRU and shall be enforceable by the Indemnified Parties.
(d) NGRU shall, until the sixth (6th) anniversary of the Effective Time, cause to be maintained in effect, to the extent available, the policies of directors' and officers' liability insurance maintained by NGRU and the NGRU Subsidiaries as of the date hereof (or policies of at least the same coverage and amounts containing terms that are not less advantageous to the insured parties) with respect to claims arising from facts that occurred on or prior to the Effective Time, including without limitation all claims based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the Merger and any and all related events. In lieu of the purchase of such insurance by NGRU, NGRU may purchase a six (6)-year extended reporting period endorsement ("Reporting Tail Coverage") under NGRU's existing directors' and officers' liability insurance coverage, providing that such Reporting Tail Coverage shall extend the directors' and officers' liability coverage in force as of the date hereof for a period of at least six (6) years from the Effective Time for any claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or any way involving acts or omissions occurring or prior to the Effective Time, including without limitation all claims based upon, arising out of, directly or indirectly resulting from, in consequence of, or any way involving the Merger or any and all related events. BPOMS shall cooperate with NGRU in obtaining such insurance coverage.
Appears in 1 contract
Samples: Merger Agreement (Netguru Inc)
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall cause the Surviving Corporation will fulfill to (i) indemnify and honor in all respects hold harmless each individual who at the obligations of Individual which exist Effective Time is, or at any time prior to the date hereof Effective Time was, a director or officer of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to indemnify Individual's present all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and former directors expenses (including reasonable fees and officers expenses of legal counsel) in connection with any claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of the Company, in each case under (A) or (B), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the Transactions), to the fullest extent permitted under applicable Law, and their heirs(ii) assume all obligations of the Company to the Indemnitees in respect of indemnification and exculpation from liabilities (and advancement of expenses) for acts or omissions occurring at or prior to the Effective Time as provided in the Company Charter Documents. Without limiting the foregoing, executors Parent, from and assigns. The Certificate after the Effective Time until all applicable statutes of Incorporation limitations have expired, shall cause the certificate of incorporation and By-laws bylaws of the Surviving Corporation will to contain provisions no less favorable to the provisions Indemnitees with respect to limitation of liabilities of directors and officers, indemnification and elimination advancement of liability for monetary damages expenses than are set forth as of the date of this Agreement in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed or otherwise modified for in a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals whothe Indemnitees. In addition, at from and after the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time Parent shall cause the Surviving Corporation will, to pay any reasonable expenses (including reasonable fees and expenses of legal counsel) of any Indemnitee under this Section 6.9 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.9) as incurred to the fullest extent permitted under applicable law or under Law, provided that the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or person to whom expenses (including attorneys' fees), 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, are advanced provides an undertaking to repay such advances to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior required by applicable Law.
(b) Prior to the Effective Time (including without limitation actions or omissions relating to Time, the Merger) for a period of six years after the date hereof. In the event of any such claimCompany shall purchase, actionand, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after following the Effective Time, the Surviving Corporation will pay shall maintain with reputable and financially sound carriers, fully pre-paid six-year “tail” policies to the reasonable fees current directors’ and expenses officers’ liability insurance and fiduciaries liability insurance policies maintained as of the date hereof by the Company (the “Current Policies”), which tail policies shall cover 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 which tail policies shall contain at least the same coverage (including the scope and amount thereof) as, and contain terms and conditions that are equivalent to, the coverage set forth in the Current Policies; provided, however that (i) such counsel“tail” policies shall not require the payment of an aggregate premium in excess of two hundred-fifty percent (250%) of the aggregate annual premium most recently paid by the Company prior to the date hereof to maintain the Current Policies, promptly after statements therefor are received (ii) prior to the Effective Time, the Company shall not enter into any Contract for a “tail” policy without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) and (iii) the Surviving Corporation will cooperate in the defense may substitute a policy or policies of any comparable coverage for such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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“tail” policies.
(c) For a period The provisions of six years after this Section 6.9 are (i) intended to be for the Effective Timebenefit 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 Person may have by contract or otherwise. The obligations of Parent and the Surviving Corporation will use all commercially reasonable efforts under this Section 6.9 shall not be terminated or modified in such a manner as to maintain adversely affect the rights of any Indemnitee to whom this Section 6.9 applies unless (1) such termination or modification is required by applicable Law or (2) the affected Indemnitee shall have consented in effectwriting to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9). Nothing in this Agreement is intended to, if availableshall be construed to or shall release, waive or impair any rights to directors' ’ and officers' liability ’ insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable claims under any policy that is or has been in existence with respect to the current directors of Individual; providedCompany or its officers or directors, howeverit being understood and agreed that the indemnification provided for in this Section 6.9 is not prior to, that or in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coveragesubstitution for, any such claims under any such policies.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and In the consummation of the Merger at the Effective Time, is intended to benefit Individualevent that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Parent or the Surviving CorporationCorporation shall assume all of the obligations thereof set forth in this Section 6.9.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the First Merger Effective Time, solely to the Surviving Corporation will fulfill and honor in all respects extent that the obligations of Individual which exist Company or the Manager or any applicable Subsidiary thereof would be permitted to indemnify an Indemnified Person immediately prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the First Merger Effective Time, were directorsParent and the Company, officersas the surviving entity in the First Merger, employees or agents of Individual, unless such modification is required by law.
jointly and severally agree to (bi) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") harmless against 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 preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified nor be provided advancement of expenses with respect to each of the foregoing to, proceeding or investigation, whether civil, criminal, administrative or investigative, all Indemnified Persons to the fullest extent arising out permitted under applicable Law and (ii) honor the provisions regarding elimination of or pertaining to any action or omission liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in his or her capacity as a director, officer, employee or agent the Organizational Documents of Individual occurring the Company and the Manager immediately prior to the First Merger Effective Time Time, and ensure that the Organizational Documents of the Company and the Manager or any of their respective successors or assigns (including without limitation actions or omissions relating to the MergerMerger Sub II) shall, for a period of six years after following the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the First Merger Effective Time, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and employees of the Surviving Corporation will pay Company and the reasonable fees and expenses Manager than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Section 6.9(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such counselIndemnified Person as provided herein, promptly after statements and shall be enforceable by such Indemnified Person and their respective heirs and representatives against Pxxxxx and the Manager and their respective successors and assigns.
(b) Parent shall maintain in effect, for six (6) years from the First Merger Effective Time, Parent’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the First Merger Effective Time with respect to Indemnified Persons (provided that Parent may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are received and (iii) no less favorable to the Surviving Corporation will cooperate in the defense of any such matterIndemnified Persons); provided, however, that in no event shall Parent be required to expend pursuant to this Section 6.9(b) more than an amount equal to 300% of current annual premiums paid by Parent for such insurance (the Surviving -------- ------- Corporation will not “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, Parent would be liable required to expend more than the Maximum Amount, Parent shall obtain the maximum amount of such insurance as is available for the Maximum Amount. If Parent in its sole discretion elects, then, in lieu of the obligations of Parent under this Section 6.9(b), Parent may (but shall be under no obligation to), prior to the First Merger Effective Time, purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the First Merger Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such. If a “tail policy” is purchased, Merger Sub II shall, and Parent shall cause Merger Sub II to, maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(c) The rights of any settlement effected without its written consent Indemnified Person under this Section 6.9 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of the Company and the Manager, any indemnification agreements, or the DLLCA. The provisions of this Section 6.9 shall survive the consummation of the transactions contemplated by this Agreement for a period of six (which consent will not be unreasonably withheld)6) years and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and Representatives; and provided, -------- furtherhowever, that, that in the event that any claim or claims for indemnification or advancement set forth in this Section 6.9 are ------- asserted or made within such six-year six (6)-year period, all rights to indemnification and advancement in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm If Parent and/or the Manager, or any of their respective successors or assigns (in addition to local counseli) to represent them consolidates with respect or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any single action unless there isother Person, under applicable standards of professional conductthen, in each such case, to the extent necessary, a conflict on any significant issue between proper provision shall be made so that the positions successors and assigns of any two or more Indemnified Parties.
(c) For a period Parent and/or the Manager shall assume the obligations of six years after Parent and the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain Manager set forth in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coveragethis Section 6.9.
(d) Individual Parent shall use best effortspay all reasonable expenses, after consultation with Desktopincluding reasonable attorneys’ fees, to negotiate that may be incurred by any Indemnified Person in enforcing the indemnity and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000other obligations provided in this Section 6.9.
(e) This The obligations of Parent and Merger Sub II under this Section 5.09 will survive 6.9 shall not be terminated, amended or modified in any termination manner so as to adversely affect any Indemnified Person (including their successors, heirs and legal representatives) to whom this Section 6.9 applies without the consent of such Indemnified Person. It is expressly agreed that, notwithstanding any other provision of this Agreement that may be to the contrary, (i) the Indemnified Persons to whom this Section 6.9 applies shall be third-party beneficiaries of this Section 6.9, and the (ii) this Section 6.9 shall survive consummation of the Merger at the Effective TimeMergers and shall be enforceable by such Indemnified Persons and their respective successors, is intended to benefit Individual, the Surviving Corporation heirs and legal representatives against Parent and the Indemnified Parties, Merger Sub II and will be binding on all their respective successors and assigns of the Surviving Corporationassigns.
Appears in 1 contract
Indemnification and Insurance. (a) From and after For a period of at least six years following the SuperMedia Effective Time, the certificate of incorporation and bylaws of the SuperMedia Surviving Corporation will fulfill Company shall contain provisions no less favorable with respect to exculpation and honor in all respects indemnification of the obligations (as of Individual which exist or prior to the date hereof to indemnify Individual's present and SuperMedia Effective Time) former directors and directors, officers and their heirs, executors and assigns. The Certificate employees of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth SuperMedia than are currently provided in the Certificate of Incorporation SuperMedia Charter and By-laws of Individualthe SuperMedia Bylaws, as applicable, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals who, at until the Effective Time, were directors, officers, employees expiration of the statutes of limitations applicable to such matters or agents of Individual, unless such amendment, modification or repeal is required by lawapplicable Law.
(b) After Without limiting the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate provisions of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' feesSection 6.8(a), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminalcriminal or administrative, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the Original Agreement Date, or who becomes prior to the SuperMedia Effective Time, a director or officer of SuperMedia or any SuperMedia Subsidiary or who is or was serving at the request of SuperMedia or any SuperMedia Subsidiary as a director or officer of another Person (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 or officer of SuperMedia or any SuperMedia Subsidiary, or of another Person at the request of SuperMedia or any SuperMedia Subsidiary, or (ii) this Agreement or any of the transactions contemplated by this Agreement, whether asserted or arising before or after the SuperMedia Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory shall cooperate and use their best efforts to the Surviving Corporation, (ii) defend against and respond thereto. From and after the Effective Time, Dex Surviving Company shall indemnify and hold harmless, as and to the Surviving Corporation will pay fullest extent permitted under applicable Law and any agreement set forth in Section 6.8 of the SuperMedia Disclosure Schedule (an “Indemnification Agreement”), each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reimbursement for reasonable fees and expenses incurred in advance of the final disposition of any claim, suit, proceeding or investigation upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement in connection with any such counselthreatened or actual claim, promptly after statements therefor are received and (iii) action, suit, proceeding or investigation. In the Surviving Corporation event of any such proceeding, each Indemnified Party will cooperate be entitled to advancement of expenses incurred in the defense of any the proceeding from Dex Surviving Company to the same extent such matter; provided, however, that Persons have the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent right to advancement of expenses from SuperMedia as of the Original Agreement Date pursuant to the SuperMedia Charter and SuperMedia Bylaws or such Person’s Indemnification Agreement (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event provided that any claim or claims for indemnification Person to whom expenses are ------- asserted or made within advanced shall have provided an undertaking to repay such six-year period, all rights advances if it is finally determined that such Person is not entitled to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesindemnification).
(c) For SuperMedia may purchase prior to the SuperMedia Effective Time a fully pre-paid six-year tail policy providing coverage and benefits that is substantially equivalent to the current directors’ and officers’ liability insurance policies maintained on the Original Agreement Date by SuperMedia (complete and accurate copies of which shall have been made available to Dex before such purchase). If such policies have been obtained, Dex Surviving Company shall or shall cause SuperMedia Surviving Company to maintain such policies in full force and effect. If SuperMedia does not obtain a tail policy, Dex Surviving Company shall cause to be maintained for a period of six years after the Effective Time, Closing Date the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, current directors' ’ and officers' ’ liability insurance covering those persons who are currently covered policies maintained by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of IndividualSuperMedia; provided, howeverthat Dex Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable from an insurance carrier with the same or better credit rating as SuperMedia’s current insurance carrier. Notwithstanding the foregoing, that in no event will -------- ------- the shall Dex Surviving Corporation Company or SuperMedia Surviving Company be required to expend per year for such policies an amount in excess of two times the annual premium currently paid by Desktop for its directors greater than 300% of the existing annual premium on SuperMedia’s current directors’ and officers' ’ liability insurance coveragepolicies (the “Maximum Amount”); provided, that if SuperMedia Surviving Company is unable to maintain or obtain the insurance called for by this Section 6.8(c), Dex Surviving Company shall cause SuperMedia Surviving Company to obtain as much comparable insurance as available for the applicable Maximum Amount.
(d) Individual In the event that Dex Surviving Company or SuperMedia Surviving Company or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, in each such case, Dex Surviving Company shall, and shall use best effortscause (as applicable) SuperMedia Surviving Company to, after consultation with Desktopcause proper provision to be made so that the successors and assigns of Dex Surviving Company or SuperMedia Surviving Company, to negotiate and secure a "tail" on its existing Directorsas applicable, Officers and Company Liability insurance policies for a period shall expressly assume the obligations of one year, at a total cost not to exceed $300,000such entity as set forth in this Section 6.8.
(e) This Section 5.09 will survive any termination The provisions of this Agreement Section 6.8 shall survive the SuperMedia Effective Time and the consummation of the Merger at the Effective Time, is are intended to be for the benefit Individual, the Surviving Corporation and the Indemnified Partiesof, and will shall be binding on all successors enforceable by, each Indemnified Party and assigns of the Surviving Corporationhis or her heirs and representatives.
Appears in 1 contract
Indemnification and Insurance. (a) From The By- Laws and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the By-Laws and Certificate of Incorporation and By-laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company or its Subsidiaries, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, harmless each present and former director, officer, employee or former director or officer agent of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (collectively, to the extent "Actions"), (x) arising out of or pertaining to the transactions contemplated by this Agreement, or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time Time, in each case to the same extent (including without limitation actions any provision for the advancement of expenses) as provided in the Company's Certificate of Incorporation or omissions relating to By-Laws or any applicable contract or agreement as in effect on the Merger) date hereof, in each case for a period of six years after the date hereofEffective 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 claim, action, suit, proceeding or investigation Action (whether 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) 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 will shall be reasonably satisfactory to the Surviving Corporation, ; (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction with respect to any single action 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, 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 retain one separate law firm in each applicable jurisdiction; (iii) after the Effective Time, the Surviving Corporation shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received; and (iv) the Surviving Corporation will cooperate in the defense of any such Action. The Surviving Corporation shall not be liable for any settlement of any such Action effected without its written consent.
(c) The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "Officer Employees") with the Company's directors and officers existing on the date hereof.
(d) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons Persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies 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 current directors of IndividualCompany; providedPROVIDED, howeverHOWEVER, that in no event will -------- ------- shall the Surviving Corporation be required to expend per year an amount in excess of two times 300% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual PROVIDED FURTHER, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 300% of one year, at a total cost not to exceed $300,000such annual premium.
(e) This Section 5.09 will survive any termination The provisions of this Agreement and Section 5.7 shall survive the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesOfficer Employees, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Officer Employees.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's ’s Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, harmless each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "“Indemnified Parties"”) against any costs or expenses (including attorneys' ’ fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law and (iii) the Surviving Corporation will shall cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six6-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the final disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall assume, honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements (the employee parties under such agreements being referred to as the “Covered Employees”) with the Company’s directors and officers existing at or before the Effective Time, provided such agreements were not entered into in violation of Section 4.01(f).
(d) In addition, 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 Surviving Corporation will use all commercially reasonable efforts Company’s current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the “D&O Insurance”) that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance (as it relates only to the Company’s current directors and officers) in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best effortspurchase as much such coverage as possible for such amount. In lieu of the foregoing, after consultation with Desktop, the Company may purchase a tail policy to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period be effective as of one yearthe Effective Time, at a total cost price not to exceed in excess of $300,000120,000, which tail policy shall satisfy Parent’s obligations set forth in this Section 5.05(d).
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.05.
(f) This Section 5.09 will 5.05 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and Corporation, the Indemnified Parties, and will the Covered Employees, shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Employees.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will shall (i) indemnify and hold harmless each individual who at the Effective Time is a director or officer of the Company 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 claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, acts or omissions by such person in such person’s capacity as a director or officer at or at any time prior to the Effective Time (including acts or omissions occurring in connection with the Transactions) to the fullest extent permitted under applicable Law and (ii) pay in advance of the final disposition of any such claim, suit, action, proceeding or investigation any reasonable expenses (including reasonable fees and expenses of legal counsel) incurred by any such officer or director in connection with any such claim, suit, action, proceeding or investigation with respect to which such person is entitled to be indemnified as provided in (i) above (including in connection with enforcing the indemnity and other obligations provided in this sentence), reasonably promptly after statements therefor are received; provided that the person to whom such expenses are to be advanced provides an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified for such amounts as provided above. Any determination required to be made with respect whether the conduct of any such officer or directors complies with the applicable standard shall be made by independent legal counsel selected by all such indemnified persons and reasonable accepted to the Surviving Corporation, the fees of such counsel shall be paid by the Surviving Corporation. The indemnification provided in this Section 5.8(a) shall apply only to each individual in his or her capacity as an officer or director of the Company, but not in any other capacity (including acting as purchaser or licensee under the Asset Transfer Agreements); provided that to the extent amounts are incurred that are partially subject to indemnification or expense reimbursement and partially not, a reasonable allocation shall be made.
(b) For six years after the Effective Time, the Surviving Corporation shall maintain all existing rights of any current or former officer, director or employee of the Company or any of its Subsidiaries (each, an “Indemnitee” and, collectively, the “Indemnitees”) to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company Charter Documents and the organizational documents of such Subsidiaries as in effect on the date hereof or the indemnification agreements listed on Section 5.8(b) of the Company Disclosure Schedule, as the case may be. Without limiting the foregoing, for six years after the Effective Time, the certificate of incorporation and by-laws of the Surviving Corporation (or any successor) shall contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. The Surviving Corporation shall honor all of its indemnification obligations existing as of the Effective Time.
(c) The Surviving Corporation shall not enter into any settlement of any claim in which the Surviving Corporation is jointly liable with an Indemnitee (or would be if joined in such claim) unless such settlement provides for a full and final release of all claims asserted against such Indemnitee.
(d) Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.8, 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.
(e) The Surviving Corporation shall use all commercially reasonable efforts to maintain (i) obtain as of the Effective Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are no less favorable to the directors and officers of the Company, in effecteach case with respect to claims arising out of or relating to events which occurred before or at the Effective Time or (ii) if it is unable to obtain the "tail" insurance policies referred to in clause (i), if availablemaintain, for the six-year period commencing immediately after the Effective Time, in effect directors' and officers' liability insurance (including excess liability directors' and officers' insurance policies) covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently (and any additional persons who at or prior to the Effective Time become) covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies (including excess liability directors' and officers' insurance policies) on terms comparable with respect to such coverage, and in amount, not less favorable to such individuals than those applicable of such policy in effect on the date hereof as more fully described in Section 5.8(e) of the Company Disclosure Schedule (or the Surviving Corporation may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring prior to the Effective Time); provided, however, that, if the aggregate premium for the insurance referred to in clause (i) or (ii) shall exceed 200% of the current directors annual premium (which amount has been disclosed to Parent prior to the date hereof and as set forth in Section 5.8(e) of Individualthe Company Disclosure Schedule), the Surviving Corporation shall obtain a policy for the applicable individuals with the best coverage as shall then be available at an aggregate premium of 200% of the current annual premium and; provided, further that any substitution or replacement of existing policies shall not result in any gaps or lapses of coverage with respect to facts, events, acts or omissions occurring at or prior to the Effective Time. Prior to the Effective Time, the Company may obtain the “tail” insurance policies as described in this Section 5.8(e); provided, however, that in no event will -------- ------- the aggregate premium for such coverage exceed 200% of the current annual premium paid by the Company for such insurance prior to the date of this Agreement.
(f) The provisions of this Section 5.8 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, and shall not impair any other rights to indemnification or contribution that any such Person may have by contract, under the Company Charter Documents, or the comparable organization documents of the Surviving Corporation be required or any of its Subsidiaries, under applicable Law, or otherwise. Notwithstanding anything contained in Section 8.2 or 8.3 to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual contrary, this Section 5.8 shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement the Effective Time and the consummation of the Merger at indefinitely. The obligations of Parent and the Effective TimeSurviving Corporation under this Section 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 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 5.8 applies shall be third party beneficiaries of this Section 5.8). Parent shall ensure that the Surviving Corporation complies with all of its obligations under this Section 5.8 and shall guarantee the obligations under Section 5.8(a), is intended to benefit Individual5.8(b) and 5.8(e).
(g) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Parent and the Surviving CorporationCorporation shall assume all of the obligations thereof set forth in this Section 5.8.
Appears in 1 contract
Samples: Merger Agreement (Roche Holding LTD)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill shall, and honor in all respects CSN Holdings shall cause the obligations of Individual which exist Surviving Corporation to, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals whowas, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former a director or officer of Individual the Company or any of its subsidiaries and his or her heirsa Subsidiary of the Company (each, executors and assigns (an “Indemnitee” and, collectively, the "Indemnified Parties"“Indemnitees”) against any costs or expenses (including attorneys' fees)with respect to all claims, liabilities, losses, damages, judgments, fines, lossespenalties, claims, damages, liabilities and costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative), to the extent whenever asserted, based on or arising out of of, in whole or pertaining to any action in part, acts or omission omissions by an Indemnitee in his or her the Indemnitee’s capacity as a director, officer, employee or agent of Individual 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 or agent of another Person (including any employee benefit plan)), at, or at any time prior to, the Effective Time (including in connection with the transactions contemplated hereby), to the fullest extent permitted under applicable Law and provided under the Company Charter Documents or any existing agreements with such Indemnitee, 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 (including without limitation actions or omissions relating to as provided in the Merger) for a period of six years after Company Charter Documents. Without limiting the date hereof. In the event of any such claimforegoing, actionCSN Holdings, suit, proceeding or investigation (whether arising before or from and after the Effective Time), (i) any counsel retained by shall cause the Indemnified Parties for any period after certificate of incorporation and by-laws of the Effective Time will be reasonably satisfactory Surviving Corporation to contain provisions no less favorable to the Surviving CorporationIndemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, (ii) which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, the Surviving Corporation will shall, and CSN Holdings shall cause the Surviving Corporation to, pay the reasonable 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 incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such counseladvances to the extent required by applicable Law.
(b) At the Company’s election, promptly after statements therefor are received and (iiii) the Surviving Corporation will cooperate in Company shall obtain prior to the defense Effective Time “tail” insurance policies with a claims period of any such matter; provided, however, that at least six (6) years from the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them Effective Time with respect to any single action unless there is, under applicable standards of professional conduct, a conflict directors’ and officers’ liability insurance in amount and scope at least as favorable as the Company’s existing policies for claims arising from facts or events that occurred on any significant issue between or prior to the positions of any two Effective Time or more Indemnified Parties.
(cii) For a period of six years after if the Company shall not have obtained such tail policies prior to the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to shall maintain in effect, if available, effect for six (6) years from the Effective Time the Company’s current directors' ’ and officers' ’ liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently covered by Individual's Directors, Officers the Company’s directors’ and Company Liability officers’ liability insurance policies policy on terms comparable with respect to such coverage, and in amount, not less favorable to such individuals than those applicable of such policy in effect on the date hereof (or CSN Holdings may cause the Surviving Corporation to substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring prior to the current directors of IndividualEffective Time); provided, however, that that, if the aggregate annual premiums for the insurance specified in no event will -------- ------- clause (i) or (ii) of this Section 5.8(b) shall exceed 250% of the current aggregate annual premium, then the Surviving Corporation shall provide or cause to be required to expend per year provided a policy for the applicable individuals with the best coverage as shall then be available at an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverageof 250% of the current aggregate annual premium.
(dc) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination The provisions of this Agreement and the consummation of the Merger at the Effective Time, is Section 5.8 are (i) intended to be for the benefit Individualof, 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 Person may have by contract or otherwise. The obligations of CSN Holdings and the Surviving Corporation and under this Section 5.8 shall not be terminated or modified in such a manner as to adversely affect the Indemnified Parties, and will rights of any Indemnitee to whom this Section 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 5.8 applies shall be binding on all successors and assigns third party beneficiaries of the Surviving Corporationthis Section 5.8).
Appears in 1 contract
Indemnification and Insurance. (a) The Surviving Corporation shall assume all of the obligations of Miami Subs or any of its subsidiaries under any indemnification agreement with any present or former director, officer, employee, and/or agent of Miami Subs or any of its subsidiaries, as in effect on or prior to the Effective Time. From and after the Effective TimeTime for a period of three years, the Surviving Corporation will fulfill shall provide with respect to each director, officer, employee and honor in all respects agent of Miami Subs and its subsidiaries (as of the obligations date hereof and through the Effective Time) (the "Indemnified Parties), the indemnification rights (including any rights to advancement of Individual reasonable expenses) which exist such Indemnified Parties had, whether from Miami Subs or any such subsidiary, immediately prior to the date hereof Effective Time, whether under the FBCA, the Articles of Incorporation or Bylaws of Miami Subs or such subsidiary. Notwithstanding the foregoing sentence, from and after the Effective Time for a period of three years, the Surviving Corporation shall honor any indemnification rights (including the advancement of reasonable expenses) of any former director, officer, employee and/or agent of Miami Subs or any of its subsidiaries, which any such person had, whether from Miami Subs or any such subsidiary, immediately prior to indemnify Individual's present and former directors and officers and their heirsthe Effective Time, executors and assignswhether under the FBCA, the Articles of Incorporation or Bylaws of Miami Subs or such subsidiary. The Certificate Articles of Incorporation and By-laws Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages of the Indemnified Parties substantially similar to those set forth in the Certificate Articles of Incorporation and By-laws Bylaws of IndividualMiami Subs, which provisions will not be amended, repealed or otherwise modified for a period of six three years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of IndividualIndemnified Parties , unless such modification is required by law. Immediately following the Effective Time, Nathan's shall cause toremain in effect, if applicable, the current policies of directors' and officers' liability insurance maintained by Miami Subs or any of its subsidiaries (provided that Nathan's may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from facts or events which occurred at or before the Effective Time, and Nathan's shall maintain such coverage for a period of three years after the Effective Time.
(b) After the Effective Time the Surviving Corporation and Nathan's will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Articles of Incorporation or Bylaws and Nathan's Certificate of Incorporation or By-lawsBylaws, respectively, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior Miami Subs arising out of or pertaining to the Effective Time (including without limitation actions or omissions relating to the Merger) transactions contemplated by this Agreement for a period of six three 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationCorporation and Nathan's, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixthree-year period, all rights to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 5.13 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualMiami Subs, the Surviving Corporation and the Indemnified PartiesParties and their heirs and representatives (each of whom shall be entitled to enforce this Section 5.13 against Nathan's or the Surviving Corporation to the extent specified herein), and will be binding on all successors and assigns of Nathan's and the Surviving Corporation.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, harmless each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law and (iii) the Surviving Corporation will shall cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the final disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the parties under such agreements being referred to as the "Covered Persons ") with the Company's directors and officers existing at or before the Effective Time, provided such agreements do not violate Section 4.01(f).
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 1 contract
Samples: Merger Agreement (Bard C R Inc /Nj/)
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation will fulfill to, (i) indemnify and honor in all respects hold harmless each individual who at the obligations of Individual which exist Effective Time is, or at any time prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals whowas, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former a director or officer of Individual the Company or any of its subsidiaries and his or her heirsa Subsidiary of the Company (each, executors and assigns (an "Indemnitee" and, collectively, the "Indemnified PartiesIndemnitees") against any costs or expenses (including attorneys' fees)with respect to all claims, liabilities, losses, damages, judgments, fines, lossespenalties, claims, damages, liabilities and costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any claim, suit, action, suit, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative), to the extent whenever asserted, based on or arising out of of, in whole or pertaining to any action in part, acts or omission omissions by an Indemnitee in his or her the Indemnitee's capacity as a director, officer, employee or agent of Individual 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 or agent of another Person (including any employee benefit plan)), at, or at any time prior to, the Effective Time (including in connection with the Transactions), to the fullest extent permitted under applicable Law and provided under the Company Charter Documents or any existing agreements with such Indemnitee, 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 (including without limitation actions or omissions relating to as provided in the Merger) for a period of six years after Company Charter Documents. Without limiting the date hereof. In the event of any such claimforegoing, actionParent, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation will pay to contain provisions no less favorable to the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them Indemnitees with respect to any single action unless there islimitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, under applicable standards which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of professional conductthe Indemnitees. In addition, a conflict on any significant issue between the positions of any two or more Indemnified Parties.
(c) For a period of six years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation will use all commercially reasonable efforts 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 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.
(b) At the Company's election in consultation with Parent, (i) the Company shall obtain prior to the Effective Time "tail" insurance policies with a claims period of at least six years from the Effective Time with respect to directors' and officers' liability insurance in amount and scope at least as favorable as the Company's existing policies for claims arising from facts or events that occurred on or prior to the Effective Time or (ii) if the Company shall not have obtained such tail policy, the Surviving Corporation shall maintain in effect, if available, effect for six years from the Effective Time the Company's current directors' and officers' liability insurance covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently (and any additional persons who prior to the Effective Time become) covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy on terms comparable with respect to such coverage, and in amount, not less favorable to such individuals than those applicable of such policy in effect on the date hereof (or Parent may cause the Surviving Corporation to substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring prior to the current directors of IndividualEffective Time); provided, however, that, if the aggregate annual premiums for such insurance shall exceed 300% of the current aggregate annual premium, 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 of 300% of the current aggregate annual premium.
(c) The provisions of this Section 5.8 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 in no event will -------- ------- any such Person may have by contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 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 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 expend per year an amount in excess such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.8 applies shall be third party beneficiaries of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coveragethis Section 5.8).
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and In the consummation of the Merger at the Effective Time, is intended to benefit Individualevent that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Parent and the Surviving CorporationCorporation shall assume all of the obligations thereof set forth in this Section 5.8.
Appears in 1 contract
Samples: Merger Agreement (Hughes Supply Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees directors or agents officers of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or and former director or officer of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement with such Indemnified Party or applicable law, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, provided further 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 will shall continue until the final disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the parties under such agreements being referred to as the "Covered Persons") with the Company's directors and officers existing at or before the Effective Time, provided such agreements do not violate Section 4.01(f).
(d) In addition, Acquiror will provide, or cause the Guarantor to provide, for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers (as defined to maintain in effectmean those persons insured under such policy) with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Guarantor and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 1 contract
Samples: Merger Agreement (Cit Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Holding Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Amended and Restated Certificate of Incorporation Incorporation, as set forth in the form thereof set forth in Exhibit A and the By-laws of IndividualNew Kroll Holdings in the form thereof set forth in Exhibit B, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Recapitalization Effective Time in any manner that would adversely affect the rights thereunder as of the Reorganization Effective Time of individuals who, who at the Reorganization Effective Time, Time were directors, officers, employees or agents (or former directors, officers, employees or agents) of Individualthe Company or any of its Affiliates or predecessors, unless such modification is required after the Recapitalization Effective Time by applicable law.
(b) After the Effective Time the The Surviving Holding Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Holding Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or and former director or officer of Individual the Company or any of its subsidiaries Subsidiaries and his or her their respective estates, heirs, executors personal representatives successors and assigns (each, an "Indemnified Party", and collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees)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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director(collectively, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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 Timean "Action"), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Kroll O Gara Co)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the parties under such agreements being referred to as the "Covered Persons") with the Company's directors and officers existing at or before the Effective Time, provided such agreements do not violate Section 4.01(f).
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mallinckrodt Inc /Mo)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will shall contain all the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents on the date hereof, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, harmless each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Mergersame extent as provided in the Company Charter Documents or any applicable contract or agreement as in effect on the date hereof and disclosed on Section 5.06 (b) of the Company Disclosure Schedule, in each case for a period of six years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law; and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, in which case each Indemnified Party with respect to whom such a conflict exists (or group of such Indemnified Parties who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements and arrangements (the employee parties under such agreements and arrangements being referred to as the "Covered Persons") with the Company's directors and officers existing at or before the Effective Time that are listed in Section 5.06(c) of the Company Disclosure Schedule.
(d) In addition, Acquiror shall provide, or cause the Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualnext best available coverage; provided, however, that in no event will -------- ------- Acquiror and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 175% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Acquiror shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) Nothing contained in this Section 5.06 is intended to limit in any manner and at any time rights that any Indemnified Party may have under and in accordance with all provisions of the Company Charter Documents, including, but not limited to, rights under the respective Article of the Company's Restated Certificate of Incorporation and the respective Article of the Company's Bylaws in each case dealing with indemnification, or any contract or agreement in effect on the date hereof or whose execution following the date hereof is permitted by the terms of this Agreement, which rights shall survive the Effective Time and shall be binding on the Surviving Corporation and all successors and assigns of the Surviving Corporation, in accordance with their respective terms.
(g) This Section 5.09 will 5.06 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective TimeTime until the sixth anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving Corporation will fulfill shall, and honor in all respects Parent shall cause the obligations of Individual which exist Surviving 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 or of a Subsidiary of the Company (each, an “Indemnitee”) 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 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 or officer 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 clauses (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 the Company would have been permitted to do so under applicable Law, and (ii) assume all obligations of the Company and 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 as provided in the Company Certificate and the Company Bylaws and the organizational documents of such Subsidiaries as in effect on the date hereof to indemnify Individual's present or in any agreement in existence as of the date hereof providing for indemnification between the Company and former directors any Indemnitee. Without limiting the foregoing, Parent, from and officers after the Effective Time, shall cause, unless otherwise required by Law, the certificate of incorporation and their heirs, executors and assigns. The Certificate of Incorporation and Bythe by-laws of the Surviving Corporation will to contain provisions no less favorable to the provisions Indemnitees with respect to limitation of liabilities of directors and officers and indemnification and elimination of liability for monetary damages than are set forth as of the date hereof in the Company Certificate of Incorporation and By-laws of Individualthe Company Bylaws, which provisions will shall not be amended, repealed or otherwise modified for in a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals whothe Indemnitees. In addition, at from and after the Effective Time, were directorsParent shall, officersand shall cause the Surviving Corporation to, employees or agents advance any expenses (including fees and expenses of Individual, unless 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 the Company would have been permitted to do so under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such modification advances if it shall be determined that such person is required by lawnot entitled to be indemnified pursuant to this Section 5.06(a).
(b) After the Effective Time None of Parent or the Surviving Corporation willshall settle, compromise or consent to the fullest extent permitted entry of any judgment in any threatened or actual Action relating to any acts or omissions covered under applicable law this Section 5.06 for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or under the Surviving Corporation's Certificate consent includes an unconditional release of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent such Indemnitee from all liability arising out of such Action or pertaining such Indemnitee otherwise consents in writing to any action such settlement, compromise or omission in his or her capacity as a director, officer, employee or agent consent. Each of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective TimeParent, the Surviving Corporation will pay and the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will Indemnitees shall cooperate in the defense of any Action 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 matter; providedconferences, howeverdiscovery proceedings, that the Surviving -------- ------- Corporation will not hearings, trials or appeals, as may be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, that, reasonably requested 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesconnection therewith.
(c) For a period of six years from the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries covering acts or omissions occurring at or prior to the Effective Time with respect to those current or former directors or officers who are currently (and any additional directors or officers who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies; provided that (i) if any Action (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 Surviving Corporation will use all commercially reasonable efforts provisions of this Section 5.06 shall continue in effect until the full and final resolution of such Action and (ii) if the aggregate annual premium for such insurance exceeds 300% of the current annual premium for such insurance, then Parent shall provide or cause to maintain in effectbe provided a policy for the applicable individuals with the greatest coverage as is then available at a cost up to but not exceeding 300% of such current aggregate annual premium. At the Company’s option, the Company may (or if availablerequested by Parent, the Company shall) purchase, prior to the Effective Time, 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 covering those persons who are currently covered and fiduciary liability insurance maintained by Individual's Directors, Officers the Company and Company Liability insurance policies its Subsidiaries with respect to matters arising on terms comparable to those applicable or prior to the current directors of IndividualEffective Time, covering without limitation the Merger and the other Transactions; provided, however, provided that in no event will -------- ------- shall the aggregate annual premium for such insurance exceed 300% of the current annual premium for such insurance. If such prepaid “tail” policy has been obtained by the Company prior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation be required Corporation, and no other party shall have any further obligation to expend per year an amount in excess of two times the annual premium currently paid by Desktop purchase or pay for its directors and officers' liability insurance coveragepursuant to this Section 5.06(c).
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination The provisions of this Agreement and the consummation of the Merger at the Effective Time, is Section 5.06 are (i) intended to be for the benefit Individualof, 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 Certificate or the Company Bylaws, by Contract or otherwise. The obligations of Parent and the Surviving Corporation and under this Section 5.06 shall not be terminated or modified in such a manner as to adversely affect the Indemnified Parties, and will be binding on all successors and assigns rights of the Surviving Corporation.any Indemnitee to whom this
Appears in 1 contract
Indemnification and Insurance. (a) From The Company shall indemnify Executive and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation willhold him harmless, to the fullest extent permitted under applicable law by the laws of the State of Delaware in effect on the date hereof, or under as such laws may from time to time hereafter be amended to increase the Surviving Corporation's Certificate scope of Incorporation or By-lawssuch permitted indemnification, indemnify from and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees)and all liabilities, expenses, damages, losses, judgments, fines, lossespenalties, claims, damages, liabilities and amounts paid or payable in settlement settlement, (including, without limitation, reasonable attorney fees) (collectively, “Losses”) in connection with any claimClaim (as hereinafter defined) related to his employment by, or his consulting services to, the Company, including, without limitation, (a) if Executive was or is or becomes a party to or participant in, or is threatened to be made a party to or participant in, any Claim by reason of or arising in part out of any event or occurrence, whether occurring before, on or after the Effective Date, related to the fact that Executive is or was an officer, employee or agent of the Company or any subsidiary of the Company or by reason of an action or inaction by Executive in any such capacity (whether or not serving in such capacity at the time any Loss is incurred for which indemnification can be provided under this Section 6), including, without limitation, Claims brought by or in the right of the Company, Claims brought by third parties, or Claims in which Executive is solely a witness and (b) in connection with any action or proceeding by Executive for (i) indemnification or reimbursement or advance payment of expenses by the Company under this Agreement or otherwise and/or (ii) recovery under any directors’ and officers’ liability insurance policies maintained by the Company. Such indemnification shall be provided in a manner and to an extent that is not less favorable to the Executive as the indemnification protection that is afforded by the Company to any other officer of comparable title and that is consistent with industry custom and standards. Executive shall have the right to advancement by the Company, prior to the final disposition of any Claim by final adjudication to which there are no further rights of appeal, of any and all expenses (including, without limitation, reasonable attorney fees) actually and reasonably paid or incurred by Executive in connection with any Claim related to his employment by, or his consulting services to, the Company. Executive’s right to such advancement is not subject to the satisfaction of any standard of conduct. Execution and delivery to the Company of this Agreement by Executive constitutes an undertaking by Executive to repay any amounts paid, advanced or reimbursed by the Company pursuant to this Section 6 in respect of expenses relating to, arising out of or resulting from any Claim in respect of which it shall be determined following the final disposition of such Claim, that Executive is not entitled to indemnification hereunder. No other form of undertaking shall be required other than the execution of this Agreement. Executive’s obligation to reimburse the Company for expense advances shall be unsecured and no interest shall be charged thereon. If Executive is entitled under any provision of this Agreement to indemnification by the Company for a portion of any Losses in respect of a Claim related to his employment by, or his consulting services to, the Company but not for the total amount thereof, the Company shall nevertheless indemnify Executive for the portion thereof to which Executive is entitled. The rights of Executive under this Section 6 will be in addition to any other rights Executive may have under the Company's certificate of incorporation or bylaws, the General Corporation Law of the State of Delaware, any other contract or otherwise; provided, however, that (a) to the extent that Executive otherwise would have any greater right to indemnification under the Company's certificate of incorporation or bylaws, the General Corporation Law of the State of Delaware, any other contract or otherwise, Executive will be deemed to have such greater right hereunder and (b) to the extent that any change is made to the Company's certificate of incorporation or bylaws, the General Corporation Law of the State of Delaware, any other contract or otherwise which permits any greater right to indemnification than that provided under this Section 6 as of the Effective Date, Executive will be deemed to have such greater right hereunder. For purposes of this Section 6, “Claim” shall mean any threatened, pending or completed action, suit, proceeding or investigation, alternative dispute resolution mechanism (whether civil, criminal, administrative administrative, arbitrative, investigative or investigativeother and whether made pursuant to federal, state or other law) or any inquiry, hearing or investigation that Executive determines might lead to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereof. In the event institution of any such claim, action, suit, proceeding or investigation (whether arising before or after alternative dispute resolution mechanism. The Company shall also reimburse the Effective Time), (i) any counsel retained by the Indemnified Parties Executive for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses cost of such counsel, promptly after statements therefor are received and (iii) attorney malpractice insurance at a level appropriate in connection with the Surviving Corporation will cooperate provision of the services contemplated hereunder.
2. Except as set forth in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-year periodthis Amendment, all rights to indemnification other terms and provisions of the Separation Agreement shall remain in respect full force and effect.
3. This Amendment may be executed in any number of counterparts, all of which shall constitute one and the same agreement, and any such claim or claims will continue until the disposition of any party hereto may execute this Amendment by signing and all such claims. The Indemnified Parties as group may retain only delivering one law firm (in addition to local counsel) 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.
(c) For a period counterparts. Delivery of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination executed counterpart of this Agreement and the consummation Amendment electronically or by facsimile shall be effective as delivery of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns an original executed counterpart of the Surviving Corporationthis Amendment.
Appears in 1 contract
Indemnification and Insurance. (a) From Licensee shall indemnify, defend and after hold harmless the Effective Time, the Surviving Corporation will fulfill Foundation and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present its current and former directors and officers and their heirsdirectors, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individualboard members, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directorstrustees, officers, employees or employees, and agents of Individualand their respective successors, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors heirs and assigns (collectively, the "Indemnified Parties") “Indemnitees”), from and against any costs or expenses (including attorneys' fees)and all claims, judgmentsliabilities, finescosts, losses, claimsexpenses, damages, liabilities deficiencies, losses or obligations of any kind or nature (including reasonable attorneys’ fees and amounts paid in settlement in connection with any claimother costs and expenses of litigation) (collectively “Claims”) based upon, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of of, or pertaining otherwise relating to any action or omission in his or her capacity as a directorthis Agreement, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions any cause of action relating to the Mergerproduct liability concerning any product, process, or service made, used, or sold pursuant to any right or license granted under this Agreement. Norwell-Foundation License FINAL 19
(b) for a period of six years after the date hereof. In the event of any such claimLicensee shall, actionat its own expense, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be provide attorneys reasonably satisfactory acceptable to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of Foundation to defend against any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for actions brought or filed against any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them Indemnitee hereunder with respect to any single action unless there isthe subject of indemnity contained herein, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two whether or more Indemnified Partiesnot such actions are rightfully brought.
(c) For a period Beginning at the time any such product, process or service is being commercially distributed or sold (other than for the purpose of six years after the Effective Timeobtaining regulatory approvals) by Licensee or by any sublicensee or agent of Licensee, the Surviving Corporation will use all commercially reasonable efforts to Licensee shall, at its sole cost and expense, procure and maintain in effect, if available, directors' and officers' commercial general liability insurance covering those persons who in amounts not less than $2,000,000 per incident and $4,000,000 annual aggregate and naming the Indemnitees as additional insureds. During clinical trials of any such product, process, or service, Licensee shall, at its sole cost and expense, procure and maintain commercial general liability insurance in such equal or lesser amount as the Foundation shall require, naming the Indemnitees as additional insureds. Such commercial general liability insurance shall provide (i) product liability coverage and (ii) broad form contractual liability coverage for Licensee’s indemnification under this Agreement. If Licensee elects to self-insure all or part of the limits described above (including deductibles or retentions that are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times $250,000 annual aggregate) such self-insurance program must be acceptable to the annual premium currently paid by Desktop for Foundation in its directors and officers' sole discretion. The minimum amounts of insurance coverage required shall not be construed to create a limitation of Licensee’s liability insurance coveragewith respect to its indemnification under this Agreement.
(d) Individual Licensee shall use best effortsprovide the Foundation with written evidence of such insurance upon request of the Foundation. Licensee shall provide the Foundation with written notice at least fifteen (15) days prior to the cancellation, after consultation with Desktopnon-renewal, or material change in such insurance; if Licensee does not obtain replacement insurance providing comparable coverage within such fifteen (15) day period, the Foundation shall have the right to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a terminate this Agreement effective at the end of such fifteen (15) day period of one year, at a total cost not to exceed $300,000without notice or any additional waiting periods.
(e) This Section 5.09 will survive any Licensee shall maintain such commercial general liability insurance beyond the expiration or termination of this Agreement during (i) the period that any product, process, or service, relating to, or developed pursuant to, this Agreement is being commercially distributed or sold by Licensee or by a sublicensee or agent of Licensee and (ii) a reasonable period after the consummation of the Merger at the Effective Timeperiod referred to in (e)(i) above, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will which period in no event shall be binding on all successors and assigns of the Surviving Corporationless than fifteen (15) years.
Appears in 1 contract
Samples: Exclusive License Agreement (Greenwich LifeSciences, Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will shall (i) indemnify and hold harmless each individual who at the Effective Time is a director or officer of the Company 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 claim, suit, action, proceeding or investigation (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, acts or omissions by such person in such person’s capacity as a director or officer at or at any time prior to the Effective Time (including acts or omissions occurring in connection with the Transactions) to the fullest extent permitted under applicable Law and (ii) pay in advance of the final disposition of any such claim, suit, action, proceeding or investigation any reasonable expenses (including reasonable fees and expenses of legal counsel) incurred by any such officer or director in connection with any such claim, suit, action, proceeding or investigation with respect to which such person is entitled to be indemnified as provided in (i) above (including in connection with enforcing the indemnity and other obligations provided in this sentence), reasonably promptly after statements therefor are received; provided that the person to whom such expenses are to be advanced provides an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified for such amounts as provided above. Any determination required to be made with respect whether the conduct of any such officer or directors complies with the applicable standard shall be made by independent legal counsel selected by all such indemnified persons and reasonable accepted to the Surviving Corporation, the fees of such counsel shall be paid by the Surviving Corporation. The indemnification provided in this Section 5.8(a) shall apply only to each individual in his or her capacity as an officer or director of the Company, but not in any other capacity (including acting as purchaser or licensee under the Asset Transfer Agreements); provided that to the extent amounts are incurred that are partially subject to indemnification or expense reimbursement and partially not, a reasonable allocation shall be made.
(b) For six years after the Effective Time, the Surviving Corporation shall maintain all existing rights of any current or former officer, director or employee of the Company or any of its Subsidiaries (each, an "Indemnitee" and, collectively, the "Indemnitees") to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company Charter Documents and the organizational documents of such Subsidiaries as in effect on the date hereof or the indemnification agreements listed on Section 5.8(b) of the Company Disclosure Schedule, as the case may be. Without limiting the foregoing, for six years after the Effective Time, the certificate of incorporation and by-laws of the Surviving Corporation (or any successor) shall contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. The Surviving Corporation shall honor all of its indemnification obligations existing as of the Effective Time.
(c) The Surviving Corporation shall not enter into any settlement of any claim in which the Surviving Corporation is jointly liable with an Indemnitee (or would be if joined in such claim) unless such settlement provides for a full and final release of all claims asserted against such Indemnitee.
(d) Each of Parent, the Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.8, 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.
(e) The Surviving Corporation shall use all commercially reasonable efforts to maintain (i) obtain as of the Effective Time "tail" insurance policies with a claims period of six (6) years from the Effective Time with at least the same coverage and amounts and containing terms and conditions that are no less favorable to the directors and officers of the Company, in effecteach case with respect to claims arising out of or relating to events which occurred before or at the Effective Time or (ii) if it is unable to obtain the "tail" insurance policies referred to in clause (i), if availablemaintain, for the six-year period commencing immediately after the Effective Time, in effect directors' ’ and officers' ’ liability insurance (including excess liability directors’ and officers’ insurance policies) covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently (and any additional persons who at or prior to the Effective Time become) covered by Individual's Directors, Officers the Company’s directors’ and Company Liability officers’ liability insurance policies (including excess liability directors’ and officers’ insurance policies) on terms comparable with respect to such coverage, and in amount, not less favorable to such individuals than those applicable of such policy in effect on the date hereof as more fully described in Section 5.8(e) of the Company Disclosure Schedule (or the Surviving Corporation may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring prior to the Effective Time); provided, however, that, if the aggregate premium for the insurance referred to in clause (i) or (ii) shall exceed 200% of the current directors annual premium (which amount has been disclosed to Parent prior to the date hereof and as set forth in Section 5.8(e) of Individualthe Company Disclosure Schedule), the Surviving Corporation shall obtain a policy for the applicable individuals with the best coverage as shall then be available at an aggregate premium of 200% of the current annual premium and; provided, further that any substitution or replacement of existing policies shall not result in any gaps or lapses of coverage with respect to facts, events, acts or omissions occurring at or prior to the Effective Time. Prior to the Effective Time, the Company may obtain the "tail" insurance policies as described in this Section 5.8(e); provided, however, that in no event will -------- ------- the aggregate premium for such coverage exceed 200% of the current annual premium paid by the Company for such insurance prior to the date of this Agreement.
(f) The provisions of this Section 5.8 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, and shall not impair any other rights to indemnification or contribution that any such Person may have by contract, under the Company Charter Documents, or the comparable organization documents of the Surviving Corporation be required or any of its Subsidiaries, under applicable Law, or otherwise. Notwithstanding anything contained in Section 8.2 or 8.3 to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual contrary, this Section 5.8 shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement the Effective Time and the consummation of the Merger at indefinitely. The obligations of Parent and the Effective TimeSurviving Corporation under this Section 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 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 5.8 applies shall be third party beneficiaries of this Section 5.8). Parent shall ensure that the Surviving Corporation complies with all of its obligations under this Section 5.8 and shall guarantee the obligations under Section 5.8(a), is intended to benefit Individual5.8(b) and 5.8(e).
(g) In the event that Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Parent and the Surviving CorporationCorporation shall assume all of the obligations thereof set forth in this Section 5.8.
Appears in 1 contract
Samples: Merger Agreement (Bioveris Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate Articles of Incorporation and By-laws Bylaws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate Restated Articles of Incorporation and By-laws the Bylaws of Individualthe Company, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate Articles of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Restated Articles of Incorporation or Bylaws 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)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "Officer Employees") with the Company's directors and officers existing at or before the Effective Time.
(d) In addition, Beta will provide, or cause the Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Beta and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Beta shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.07.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Samples: Merger Agreement (Amp Inc)
Indemnification and Insurance. (a) From and after For a period of at least six years following the SuperMedia Effective Time, the certificate of incorporation and bylaws of the SuperMedia Surviving Corporation will fulfill Company shall contain provisions no less favorable with respect to exculpation and honor in all respects indemnification of the obligations (as of Individual which exist or prior to the date hereof to indemnify Individual's present and SuperMedia Effective Time) former directors and directors, officers and their heirs, executors and assigns. The Certificate employees of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth SuperMedia than are currently provided in the Certificate of Incorporation SuperMedia Charter and By-laws of Individualthe SuperMedia Bylaws, as applicable, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of any such individuals who, at until the Effective Time, were directors, officers, employees expiration of the statutes of limitations applicable to such matters or agents of Individual, unless such amendment, modification or repeal is required by lawapplicable Law.
(b) After Without limiting the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate provisions of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' feesSection 6.8(a), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminalcriminal or administrative, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereof. In the event of any such claim, action, suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the Original Agreement Date, or who becomes prior to the SuperMedia Effective Time, a director or officer of SuperMedia or any SuperMedia Subsidiary or who is or was serving at the request of SuperMedia or any SuperMedia Subsidiary as a director or officer of another Person (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 or officer of SuperMedia or any SuperMedia Subsidiary, or of another Person at the request of SuperMedia or any SuperMedia Subsidiary, or (ii) this Agreement or any of the transactions contemplated by this Agreement, whether asserted or arising before or after the SuperMedia Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory shall cooperate and use their best efforts to the Surviving Corporation, (ii) defend against and respond thereto. From and after the Effective Time, Dex Surviving Company shall indemnify and hold harmless, as and to the Surviving Corporation will pay fullest extent permitted under applicable Law and any agreement set forth in Section 6.8 of the SuperMedia Disclosure Schedule (an “Indemnification Agreement”), each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reimbursement for reasonable fees and expenses incurred in advance of the final disposition of any claim, suit, proceeding or investigation upon receipt of any undertaking required by applicable Law), judgments, fines and amounts paid in settlement in connection with any such counselthreatened or actual claim, promptly after statements therefor are received and (iii) action, suit, proceeding or investigation. In the Surviving Corporation event of any such proceeding, each Indemnified Party will cooperate be entitled to advancement of expenses incurred in the defense of any the proceeding from Dex Surviving Company to the same extent such matter; provided, however, that Persons have the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent right to advancement of expenses from SuperMedia as of the Original Agreement Date pursuant to the SuperMedia Charter and SuperMedia Bylaws or such Person’s Indemnification Agreement (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event provided that any claim or claims for indemnification Person to whom expenses are ------- asserted or made within advanced shall have provided an undertaking to repay such six-year period, all rights advances if it is finally determined that such Person is not entitled to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesindemnification).
(c) For SuperMedia may purchase prior to the SuperMedia Effective Time a fully pre-paid six-year tail policy providing coverage and benefits that is substantially equivalent to the current directors’ and officers’ liability insurance policies maintained on the Original Agreement Date by SuperMedia (complete and accurate copies of which shall have been made available to Dex before such purchase). If such policies have been obtained, Dex Surviving Company shall or shall cause SuperMedia Surviving Company to maintain such policies in full force and effect. If SuperMedia does not obtain a tail policy, Dex Surviving Company shall cause to be maintained for a period of six years after the Effective Time, Closing Date the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, current directors' ’ and officers' ’ liability insurance covering those persons who are currently covered policies maintained by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of IndividualSuperMedia; provided, howeverthat Dex Surviving Company may substitute therefor policies of at least the same coverage containing terms and conditions that are not materially less favorable from an insurance carrier with the same or better credit rating as SuperMedia’s current insurance carrier. Notwithstanding the foregoing, that in no event will -------- ------- the shall Dex Surviving Corporation Company or SuperMedia Surviving Company be required to expend per year for such policies an amount in excess of two times the annual premium currently paid by Desktop for its directors greater than 300% of the existing annual premium on SuperMedia’s current directors’ and officers' ’ liability insurance coveragepolicies (the “Maximum Amount”); provided, that if SuperMedia Surviving Company is unable to maintain or obtain the insurance called for by this Section 6.8(c), Dex Surviving Table of Contents Company shall cause SuperMedia Surviving Company to obtain as much comparable insurance as available for the applicable Maximum Amount.
(d) Individual In the event that Dex Surviving Company or SuperMedia Surviving Company or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any Person, then, in each such case, Dex Surviving Company shall, and shall use best effortscause (as applicable) SuperMedia Surviving Company to, after consultation with Desktopcause proper provision to be made so that the successors and assigns of Dex Surviving Company or SuperMedia Surviving Company, to negotiate and secure a "tail" on its existing Directorsas applicable, Officers and Company Liability insurance policies for a period shall expressly assume the obligations of one year, at a total cost not to exceed $300,000such entity as set forth in this Section 6.8.
(e) This Section 5.09 will survive any termination The provisions of this Agreement Section 6.8 shall survive the SuperMedia Effective Time and the consummation of the Merger at the Effective Time, is are intended to be for the benefit Individual, the Surviving Corporation and the Indemnified Partiesof, and will shall be binding on all successors enforceable by, each Indemnified Party and assigns of the Surviving Corporationhis or her heirs and representatives.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsto, indemnify and hold harmless, harmless each present or and former director or and officer of Individual or any the Company determined as of its subsidiaries and his or her heirs, executors and assigns the Effective Time (collectively, the "“Indemnified Parties"”) against any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action matters existing or omission in his occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including including, without limitation actions limitation, in connection with the transactions contemplated by this Agreement), whether asserted or omissions relating claimed prior to, at or after the Effective Time, to the Mergerfullest extent permitted under the NJCA (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification).
(b) for a period Any Indemnified Party wishing to claim indemnification under paragraph (a) of six years after this Section 9.02, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the date hereofSurviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any period after legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the Effective Time will be reasonably satisfactory to the Surviving Corporationdefense thereof, (ii) after the Effective Time, except that if the Surviving Corporation will pay elects not to assume such defense or counsel for the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them with respect to any single action unless advises that there is, under applicable standards are issues which raise conflicts of professional conduct, a conflict on any significant issue interest between the positions of any two or more Indemnified Parties.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and will the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received.
(c) If Parent or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be binding on the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of Parent shall assume all of the Surviving Corporationobligations set forth in this Section.
(d) The provisions of this Section are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist SPC pursuant to any indemnification agreements between SPC and its directors and officers existing prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assignshereof. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages not less favorable to officers and directors to those set forth in the Certificate of Incorporation and By-laws Bylaws of IndividualSPC, which provisions will not be amended, repealed or otherwise modified in a manner adverse to officers and directors for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of IndividualSPC, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present or and former director or officer of Individual SPC or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual occurring prior SPC arising out of or pertaining to the Effective Time (including without limitation actions or omissions relating to the Merger) transactions contemplated by this Agreement 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationCorporation and Allegro, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period Allegro shall maintain through September 3, 1997 the current policies of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered maintained by Individual's Directors, Officers SPC. The Surviving Corporation shall pay all retentions and Company Liability insurance policies on terms comparable deductibles payable by any Indemnified Party with respect to those applicable to the current directors of Individualsuch policies; provided, however, that in no event will -------- ------- if and to the extent the Surviving Corporation has insufficient cash to pay such retentions and deductibles in full, the remaining amounts payable shall be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverageAllegro.
(d) Individual Promptly after the Effective Time, Allegro shall use best effortsenter into indemnification agreements with directors and officers of SPC who become directors or officers of Allegro or of the Surviving Corporation, after consultation which agreements shall be substantially identical to those which Allegro has entered with Desktop, to negotiate its current officers and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000directors.
(e) This Section 5.09 5.13 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualSPC, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.. If Allegro or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving person of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person or entity, then and in each such case, proper provision shall be made so that such successors or assigns of Allegro or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.13. 5.14
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. a. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at who on or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After b. The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws as in effect at the Effective Time, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs cost or expenses expense (including attorneys' attorney's fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, PROVIDED that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and providedPROVIDED, -------- furtherFURTHER, that, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) c. Acquisition Sub and the Surviving Corporation shall 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 before the Effective Time.
d. For a period of six years after the Effective Time, Acquisition Sub shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Acquisition Sub) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; provided, however, PROVIDED that in no event will -------- ------- shall Acquisition Sub or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coveragePROVIDED, FURTHER, that if the premium for such coverage exceeds such amount, Acquisition Sub or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 150% of the annual premium.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) e. This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Acquisition Sub and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill Buyer agrees that it shall honor all rights to indemnification and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's exoneration (including expense advancement) currently held by each present and former directors director, manager, officer, employee and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws agent of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against Subsidiaries for any costs or expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages, damages or liabilities and amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to by reason of the extent arising out of fact that such person is or pertaining to any action or omission in his or her capacity as was a director, manager, officer, employee or agent of Individual the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, manager, officer, employee or agent of any other person, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time (including without limitation actions Time, whether asserted or omissions relating to the Merger) for a period of six years after the date hereof. In the event of any such claimclaimed prior to, action, suit, proceeding or investigation (whether arising before at or after the Effective Time, to the fullest extent that the Company or any of its Subsidiaries, as the case may be, would have been permitted under applicable Law and its respective certificate of incorporation, bylaws or other organizational documents in effect on the date of this Agreement to indemnify such person (including promptly advancing expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, the Surviving Company and each of its Subsidiaries shall (i) any counsel retained by the Indemnified Parties maintain for any a period after of not less than six (6) years from the Effective Time will be reasonably satisfactory provisions in its certificate of incorporation, bylaws and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Surviving CorporationCompany’s and its Subsidiaries’ former and current officers, managers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the certificates of incorporation, bylaws and other organizational documents of the Company or such Subsidiary, as applicable, in each case, as of the date of this Agreement and (ii) after not to amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) For a period of six (6) years from the Effective Time, the Surviving Corporation will pay Company shall maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the reasonable fees Company’s or any of its Subsidiaries’ directors’ and expenses officers’ liability insurance policies on terms not less favorable than the terms of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such mattercurrent insurance coverage; provided, however, that (i) Buyer or the Surviving -------- ------- Corporation will Company may satisfy this obligation by causing coverage to be extended under the current directors’ and officers’ liability insurance by obtaining at or prior to the Closing a prepaid, non-cancelable six-year “tail” policy containing terms not less favorable than the terms of such current insurance coverage) with respect to matters existing or occurring at or prior to the Effective Time, which policy shall not be liable for any settlement effected without its written consent required to cost more than a single payment equal to 250% of the Company’s current annual directors’ and officers’ liability insurance premium and (which consent will not be unreasonably withheld); and provided, -------- further, that, in the event that ii) if any claim or claims for indemnification are ------- is asserted or made within such six-year period, all rights any insurance required to indemnification be maintained under this Section 7.1 shall be continued in respect of any such claim or claims will continue until the final disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesthereof.
(c) For a period The rights of six years after indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which any Person entitled to indemnification under this Section 7.1 (an “Indemnified Person”) may at any time be entitled. No right or remedy herein conferred on an Indemnified Person by this Agreement is intended to be exclusive of any other right or remedy, and every other right and remedy of an Indemnified Person shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity or otherwise. The assertion by an Indemnified Person of any right or remedy hereunder, or otherwise, shall not prevent the Effective Timeconcurrent or subsequent assertion by such Indemnified Person of any other right or remedy. Buyer hereby acknowledges that the Indemnified Persons may have or may, in the future, have certain rights to indemnification, advancement of expenses and/or insurance provided by other Persons (collectively, “Other Indemnitors”). Buyer hereby agrees that, with respect to any advancement or indemnification obligation owed, at any time, to an Indemnified Person by Buyer, the Surviving Company or any of its Subsidiaries or any Other Indemnitor, whether pursuant to any certificate of incorporation, bylaws, certificate of formation, limited liability company agreement, partnership agreement, operating agreement, indemnification agreement or other document or agreement and/or pursuant to this Section 7.1 (any of the foregoing, an “Indemnification Obligation”), the Surviving Corporation will use and its Subsidiaries shall
(i) jointly and severally, and at all commercially reasonable efforts to maintain in effecttimes, if availablebe the indemnitors of first resort (i.e., directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation Company’s and its Subsidiaries’ obligations to an Indemnified Person shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnified Person shall be secondary), (ii) at all times, be required to expend per year advance, and shall be liable, jointly and severally, for, the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or any Indemnification Obligation, without regard to any rights that an amount Indemnified Person may have against the Other Indemnitors. Furthermore, Buyer irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims (x) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in excess respect thereof and (y) that the Indemnified Person must seek expense advancement or reimbursement, or indemnification, from any Other Indemnitor before the Surviving Company or its Subsidiaries or Buyer must perform its expense advancement and reimbursement, and indemnification obligations, under this Agreement. Buyer hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of two times an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from Buyer or the annual premium currently Surviving Company or its Subsidiaries shall affect the foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such Indemnified Person against Buyer, the Surviving Company or its Subsidiaries, and Buyer or the Surviving Company or its Subsidiaries shall jointly and severally indemnify and hold harmless the Other Indemnitors against such amounts actually paid by Desktop for the Other Indemnitors to or on behalf of such Indemnified Person to the extent such amounts would have otherwise been payable by Buyer or the Surviving Company or its directors and officers' liability insurance coverageSubsidiaries under any Indemnification Obligation.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of Notwithstanding anything contained in this Agreement and to the contrary, this Section 7.1 shall survive the consummation of the Merger at the Effective Timeindefinitely and shall be binding, is intended to benefit Individualjointly and severally, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of Buyer and the Surviving CorporationCompany. In the event that Buyer or the Surviving Company or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer or the Surviving Company, as the case may be, shall succeed to the obligations set forth in this Section 7.1.
(e) Buyer shall assume, and be jointly and severally liable for, and shall cause the Company and its Subsidiaries to honor, each of the covenants in this Section 7.1.
Appears in 1 contract
Samples: Merger Agreement (Aramark)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After From and after the purchase of any Shares pursuant to the Offer, the Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her Company Subsidiary (together with their respective successors, assigns, heirs, executors executors, administrators and assigns (representatives, collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent brought or filed, arising out of or pertaining to any action acts or omission omissions or alleged acts or omissions by them in his or her their capacity as a directorsuch, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) in each case for a period of six years after the date hereof, including, without limitation, the transactions contemplated hereby. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 6.3.(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 present or former director, officer or employee of the Company or any of its subsidiaries.
(c) The Surviving Corporation shall 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 before the Effective Time.
(d) For a period of six five years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy on terms (including the amounts of coverage and the amounts of deductibles, if any) that are comparable to those 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 directors of Individualpolicies; provided, however, that in no event will -------- ------- the shall Parent or Surviving Corporation be required to expend per year an amount spend in excess of two times 300% of the annual premium currently paid by Desktop the Company for its directors such coverage and officers' liability insurance coverage.
(d) Individual provided further if the premium for such coverage exceeds such amount, Parent or Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 300% of one year, at a total cost not to exceed $300,000the annual premium.
(e) From and after the Effective Time, Parent shall guarantee the obligations of the Surviving Corporation under this SECTION 6.3.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Parent and the Surviving Corporation.Corporation and shall be enforceable by the Indemnified Parties. In the event that Parent or Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation (as the case may be) assume the obligations of Parent and the Surviving Corporation set forth in this SECTION 6.3..
Appears in 1 contract
Samples: Merger Agreement (Laidlaw Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After From and after the purchase of any Shares pursuant to the Offer, the Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her Company Subsidiary (together with their respective successors, assigns, heirs, executors executors, administrators and assigns (representatives, collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent brought or filed, arising out of or pertaining to any action acts or omission omissions or alleged acts or omissions by them in his or her their capacity as a directorsuch, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) in each case for a period of six years after the date hereof, including, without limitation, the transactions contemplated hereby. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.the
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation will fulfill and honor in all respects to, cause the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws or similar organizational documents of the Surviving Corporation will and the Company’s Subsidiaries to contain the provisions no less favorable with respect to indemnification and elimination of liability for monetary damages than are set forth in the Certificate of Incorporation and By-laws Bylaws, respectively, or similar organizational documents of Individualthe Company and its Subsidiaries as of the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees employees, fiduciaries or agents of Individual, unless such modification is required by law.
(b) After the Company or any of its Subsidiaries. From and after the Effective Time Time, Parent shall, and shall cause the Surviving Corporation willto, fulfill and honor in all respects, to the fullest extent permitted under applicable law or under Law, the Surviving Corporation's Certificate obligations of Incorporation or By-lawsthe Company pursuant to any indemnification, indemnify exculpation and hold harmless, advancement of expenses provisions in favor of each present or former director or officer of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "“Indemnified Parties"”) against contained in the Certificate of Incorporation or Bylaws of the Company or similar organizational documents of its Subsidiaries, or in any agreement between an Indemnified Party and the Company in effect as of the date of this Agreement, with respect to any costs or and expenses (including reasonable attorneys' ’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission, in his or her capacity as a director or officer of the Company or any of its Subsidiaries, occurring at or before the Effective Time. In the event of any such claim, action, suit, proceeding or investigation, (i) any the Surviving Corporation shall pay the reasonable fees and expenses of counsel retained selected by the Indemnified Parties for any period after the Effective Time will Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received (provided the applicable Indemnified Party provides an undertaking, to the extent required by applicable Law, the Certificate of Incorporation or Bylaws of the Company or similar organizational documents of its Subsidiaries, or by the applicable agreement between an Indemnified Party and the Company, to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification), and (iiiii) the Surviving Corporation will shall cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its the Surviving Corporation’s prior written consent (which consent will not be unreasonably withheld)consent; and provided, -------- further, thatthat the Surviving Corporation shall not be obligated pursuant to this Section 4.9(a) to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single action, except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action. In the event that any claim or claims for indemnification are ------- is asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any such claim.
(b) At or prior to the Acceptance Date, the Company shall purchase, at the Company’s expense, an extended “tail” reporting period for the Company’s directors’ and all such claims. The Indemnified Parties officers’ liability insurance in effect as group may retain only one law firm of the date hereof (the “Current D&O Policy”), which extended “tail” reporting period shall (i) be for an effective period of six (6) years after the Acceptance Date, (ii) be for the benefit of those Persons who are covered by the Current D&O Policy, (iii) be purchased at a premium not in addition to local counselexcess of the amount set forth in Section 4.9(b) to represent them of the Company Disclosure Letter, and (iv) shall contain terms with respect to any single action unless there iscoverage and amount no less favorable than those contained in the Current D&O Policy. Notwithstanding the foregoing, under applicable standards if such extended “tail” reporting period cannot be obtained, or can only be obtained by the payment of professional conducta premium in excess of the amount set forth in Section 4.9(b) of the Company Disclosure Letter, then the Company shall only be required to purchase such extended period, if any, as may be available for such length of time as can be obtained by the payment of a conflict on any significant issue between premium not in excess of such amount. If such “tail” policy has been obtained by the positions of any two or more Indemnified Parties.
Company prior to the Acceptance Date, Parent and the Company (c) For a period of six years and after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Corporation) shall maintain such “tail” policy in full force and effect for its full term and shall continue to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to honor the current directors of Individual; provided, however, that in no Company’s obligations thereunder.
(c) In the event will -------- ------- the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be required the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to expend per year an amount any Person, then, in excess of two times each such case, proper provisions shall be made so that the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 4.9.
(d) The provisions of this Section 4.9 are intended to be (i) for the benefit of, and shall grant third party rights to and be enforceable by, each Indemnified Party and his or her heirs and representatives and (ii) 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. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 4.9 that is denied by Parent or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification, then Parent or the Surviving Corporation shall pay such Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Parent or the Surviving Corporation.
Appears in 1 contract
Indemnification and Insurance. (a) From For a period of six (6) years after the Effective Time, Purchaser shall cause the Surviving Corporation 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 or, while serving as a director or officer of the Company, is or was a director or officer of a Subsidiary of the Company (each, an “Indemnitee”) 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 or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee was a director or officer of the Company or, while serving as a director or officer of the Company, is or was a director or officer of a Subsidiary of the Company or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of the Company or, while serving as a director of officer of the Company, a director or officer of a Subsidiary of the Company (including in connection with the Indemnitee’s 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 any time prior to the Effective Time (including any Action relating in whole or in part to the transactions contemplated by this Agreement 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. Without limiting the foregoing, Purchaser, for a period of six (6) years after the Effective Time, shall cause, unless otherwise required by Law, the certificate of incorporation and the bylaws of the Surviving Corporation (and the equivalent organizational or constitutional documents of each of its Subsidiaries) to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and indemnification of directors and officers of the Company and its Subsidiaries than are set forth as of the date hereof in the Company Certificate and the Company Bylaws (or such Subsidiaries’ equivalent organizational or constitutional documents), which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, the Surviving Corporation will fulfill shall advance any expenses (including reasonable fees and honor expenses of legal counsel) of any Indemnitee under this Section 5.07 (including in all respects connection with enforcing the indemnity and other obligations referred to in this Section 5.07) in connection with any Action to which such Indemnitee is or is threatened to be made a party by reason of Individual which exist prior the fact that he or she is or was a director or officer of the Company or, while serving as a director or officer of the Company, is or was serving as a director or officer of a Subsidiary of the Company, as incurred to the date hereof fullest extent the Company would have been permitted to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of do so under applicable Law; provided that the Surviving Corporation will contain the provisions with respect individual to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will whom expenses are advanced shall first provide an undertaking to repay such advances if it shall be determined that such Person is not entitled to be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by lawindemnified pursuant to this Section 5.07(a).
(b) After the Effective Time None of Purchaser or the Surviving Corporation willshall settle, compromise or consent to the fullest extent permitted entry of any judgment on behalf of any Indemnitee in any threatened or actual Action relating to any acts or omissions covered under applicable law this Section 5.07 (each, a “Claim”) for which indemnification has been sought or under the Surviving Corporation's Certificate may be sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent such Indemnitee from all liability arising out of such Claim or pertaining such Indemnitee otherwise consents in writing to any action such settlement, compromise or omission in his or her capacity as a director, officer, employee or agent consent. Each of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective TimePurchaser, the Surviving Corporation will pay and the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will Indemnitees shall cooperate in the defense of any such matter; provided, however, threatened or actual Action relating to any acts or omissions covered under this Section 5.07 and shall provide access to properties and individuals during normal business hours and in a manner that shall not unreasonably interfere with the business and operations of the Surviving -------- ------- Corporation will not and its Subsidiaries as reasonably requested and furnish or cause to be liable for any settlement effected without its written consent (which consent will not furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be unreasonably withheld); and provided, -------- further, that, reasonably requested 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesconnection therewith.
(c) For a period of six (6) years after from the Effective Time, Purchaser shall cause the Surviving Corporation to maintain in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries (or substitute policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to matters arising on or prior to the Effective Time; provided that, if the aggregate annual premium for such insurance exceeds 300% of the current annual premium for such insurance, then Purchaser shall provide or cause to be provided a policy for the applicable individuals with the most advantageous coverage as is then available at a cost up to but not exceeding 300% of such current aggregate annual premium. At the Company’s option, the Company may (or if requested by Purchaser, the Company shall) purchase, using a broker mutually selected by the Company and Purchaser acting in good faith and taking into account available policy price and coverage options, prior to the Effective Time, a six (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 arising on or prior to the Effective Time, covering without limitation the Merger and the other transactions contemplated hereby; provided that in no event shall the Company spend or commit to spend for such “tail” policies an annual premium amount in excess of 300% of the current aggregate annual premium of the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance. If such prepaid “tail” policy has been obtained by the Company prior to the Effective Time, the Surviving Corporation will use all commercially reasonable efforts shall cause such policy to maintain be maintained in full force and effect, if availablefor its full term, directors' and officers' liability insurance covering those persons who are currently covered cause all obligations thereunder to be honored by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required Corporation, and no other party shall have any further obligation to expend per year an amount in excess of two times the annual premium currently paid by Desktop purchase or pay for its directors and officers' liability insurance coveragepursuant to this Section 5.07(c).
(d) Individual The provisions of this Section 5.07 are (i) intended to be for the benefit of, and shall use best effortsbe enforceable by, after consultation with Desktopeach Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to negotiate indemnification or contribution that any such individual may have under the Company Certificate or the Company Bylaws, by Contract or otherwise. The obligations of Purchaser and secure the Surviving Corporation under this Section 5.07 shall not be terminated or modified in such a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period manner as to adversely affect the rights of one year, at a total cost not any Indemnitee to exceed $300,000whom this Section 5.07 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee has consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.07 applies shall be third-party beneficiaries of this Section 5.07).
(e) This Section 5.09 will survive any termination of this Agreement and In the consummation of the Merger at the Effective Time, is intended to benefit Individualevent that Purchaser, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the Indemnified Partiescontinuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be binding on all made so that the successors and assigns of Purchaser or the Surviving CorporationCorporation shall assume all of the obligations thereof set forth in this Section 5.07.
(f) Nothing in this Agreement is intended to, shall be construed to or shall, release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.07 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Samples: Merger Agreement (RealD Inc.)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate Articles of Incorporation and By-laws Bylaws of the Surviving Corporation will shall contain all the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents on the date hereof, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate Articles of Incorporation or By-lawsBylaws, indemnify and hold harmless, harmless each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law; and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, in which case each Indemnified Party with respect to whom such a conflict exists (or group of such Indemnified Parties who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "Covered Persons") with the Company's directors and officers existing at or before the Effective Time.
(d) In addition, Acquiror shall provide, or cause the Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Acquiror and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Acquiror shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) Nothing contained in this Section 5.06 is intended to limit in any manner and at any time rights that any Indemnified Party may have under and in accordance with all provisions of the Company Charter Documents, including, but not limited to, rights under the respective Article of the Company's Restated Certificate of Incorporation and the respective Article of the Company's Bylaws in each case dealing with indemnification, or any contract or agreement in effect on the date hereof or whose execution following the date hereof is permitted by the terms of this Agreement, which rights shall survive the Effective Time and shall be binding on the Surviving Corporation and all successors and assigns of the Surviving Corporation, in accordance with their respective terms.
(g) This Section 5.09 will 5.06 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sensormatic Electronics Corp)
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation will fulfill and honor in all respects to, cause the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws or similar organizational documents of the Surviving Corporation will and the Company's Subsidiaries to contain the provisions no less favorable with respect to indemnification and elimination of liability for monetary damages than are set forth in the Certificate of Incorporation and By-laws Bylaws, respectively, or similar organizational documents of Individualthe Company and its Subsidiaries as of the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees employees, fiduciaries or agents of Individual, unless such modification is required by law.
(b) After the Company or any of its Subsidiaries. From and after the Effective Time Time, Parent shall, and shall cause the Surviving Corporation willto, fulfill and honor in all respects, to the fullest extent permitted under applicable law or under Law, the Surviving Corporation's Certificate obligations of Incorporation or By-lawsthe Company pursuant to any indemnification, indemnify exculpation and hold harmless, advancement of expenses provisions in favor of each present or former director or officer of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against contained in the Certificate of Incorporation or Bylaws of the Company or similar organizational documents of its Subsidiaries, or in any agreement between an Indemnified Party and the Company in effect as of the date of this Agreement, with respect to any costs or and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission, in his or her capacity as a director or officer of the Company or any of its Subsidiaries, occurring at or before the Effective Time. In the event of any such claim, action, suit, proceeding or investigation, (i) any the Surviving Corporation shall pay the reasonable fees and expenses of counsel retained selected by the Indemnified Parties for any period after the Effective Time will Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received (provided the applicable Indemnified Party provides an undertaking, to the extent required by applicable Law, the Certificate of Incorporation or Bylaws of the Company or similar organizational documents of its Subsidiaries, or by the applicable agreement between an Indemnified Party and the Company, to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification), and (iiiii) the Surviving Corporation will shall cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its the Surviving Corporation's prior written consent (which consent will not be unreasonably withheld)consent; and provided, -------- further, thatthat the Surviving Corporation shall not be obligated pursuant to this Section 4.9(a) to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any jurisdiction with respect to any single action, except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action. In the event that any claim or claims for indemnification are ------- is asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any such claim.
(b) At or prior to the Acceptance Date, the Company shall purchase, at the Company's expense, an extended "tail" reporting period for the Company's directors' and all such claims. The Indemnified Parties officers' liability insurance in effect as group may retain only one law firm of the date hereof (the "Current D&O Policy"), which extended "tail" reporting period shall (i) be for an effective period of six (6) years after the Acceptance Date, (ii) be for the benefit of those Persons who are covered by the Current D&O Policy, (iii) be purchased at a premium not in addition to local counselexcess of the amount set forth in Section 4.9(b) to represent them of the Company Disclosure Letter, and (iv) shall contain terms with respect to any single action unless there iscoverage and amount no less favorable than those contained in the Current D&O Policy. Notwithstanding the foregoing, under applicable standards if such extended "tail" reporting period cannot be obtained, or can only be obtained by the payment of professional conducta premium in excess of the amount set forth in Section 4.9(b) of the Company Disclosure Letter, then the Company shall only be required to purchase such extended period, if any, as may be available for such length of time as can be obtained by the payment of a conflict on any significant issue between premium not in excess of such amount. If such "tail" policy has been obtained by the positions of any two or more Indemnified Parties.
Company prior to the Acceptance Date, Parent and the Company (c) For a period of six years and after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Corporation) shall maintain such "tail" policy in full force and effect for its full term and shall continue to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualhonor the Company's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to obligations thereunder.
(c) In the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be required the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to expend per year an amount any Person, then, in excess of two times each such case, proper provisions shall be made so that the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 4.9.
(d) The provisions of this Section 4.9 are intended to be (i) for the benefit of, and shall grant third party rights to and be enforceable by, each Indemnified Party and his or her heirs and representatives and (ii) 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. If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 4.9 that is denied by Parent or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification, then Parent or the Surviving Corporation shall pay such Indemnified Party's costs and expenses, including reasonable legal fees and expenses, incurred in connection with pursuing such claim against Parent or the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Metromedia International Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, Parent will, and will cause the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsto, indemnify and hold harmless, harmless each present or and former director or and officer of Individual or any the Company determined as of its subsidiaries and his or her heirs, executors and assigns the Effective Time (collectively, the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action matters existing or omission in his occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including including, without limitation actions limitation, in connection with the transactions contemplated by this Agreement), whether asserted or omissions relating claimed prior to, at or after the Effective Time, to the Mergerfullest extent permitted under the DGCL (and the Surviving Corporation will also advance expenses as incurred to the fullest extent permitted under applicable law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification).
(b) for a period Any Indemnified Party wishing to claim indemnification under paragraph (a) of six years after this Section 9.02, upon learning of any such claim, action, suit, proceeding or investigation, will promptly notify the date hereofSurviving Corporation thereof, but the failure to so notify will not relieve the Surviving Corporation of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Surviving Corporation will have the right to assume the defense thereof and the Surviving Corporation will not be liable to such Indemnified Parties for any period after legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the Effective Time will be reasonably defense thereof, except that if 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 the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to the Surviving Corporationthem, (ii) after the Effective Time, and the Surviving Corporation will pay the all reasonable fees and expenses of such counsel, counsel for the Indemnified Parties promptly after as statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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 Partiesreceived.
(c) For a period of six three years after the Effective Time, Parent will cause to be maintained in effect the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, current policies of directors' and officers' liability insurance covering those persons who maintained by the Company ("D&O Insurance") with respect to claims arising from facts or events which occurred before the Effective Time, provided that Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualno less advantageous; provided, however, that in no event nothing contained herein will -------- ------- require Parent or the Surviving Corporation be required to expend per year an amount incur any annual premium in excess of two times 150% of the last annual aggregate premium paid prior to the date of this Agreement for all current D&O Insurance policies maintained by the Company. If such premiums for such insurance would at any time exceed 150% of such current premium, then Parent will cause to be maintained policies of insurance which, in Parent's good faith determination, provide the maximum coverage available at an annual premium currently paid by Desktop for its directors and officers' liability insurance coverageequal to 150% of such current premium.
(d) Individual shall use best effortsIf Parent or any of its successors or assigns (i) consolidates with or merges into any other corporation or entity and will not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any individual, after consultation with Desktopcorporation or other entity, to negotiate then and secure a "tail" on its existing Directorsin each such case, Officers proper provisions will be made so that the successors and Company Liability insurance policies for a period assigns of one year, at a total cost not to exceed $300,000Parent will assume all of the obligations set forth in this Section 9.02.
(e) This Section 5.09 will survive any termination The provisions of this Agreement and the consummation of the Merger at the Effective Time, is Section 9.02 are intended to be for the benefit Individualof, the Surviving Corporation and will be enforceable by, each of the Indemnified Parties, their heirs and will be binding on all successors and assigns of the Surviving Corporation.their representatives. ARTICLE X
Appears in 1 contract
Samples: Merger Agreement (Transgenomic Inc)
Indemnification and Insurance. (a) From a. The By-Laws and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the By-Laws and Certificate of Incorporation and By-laws of IndividualExpert, which provisions will shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After b. Notwithstanding the Effective Time foregoing, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual Expert or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in Expert's Certificate of Incorporation or By-Laws or any applicable contract or agreement as in effect on the date hereof, in each case for a period of six (6) years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be may retain as its counsel Xxxxxxx, Procter & Xxxx LLP, or other counsel reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay shall advance to the Indemnified Party the reasonable fees and expenses of such counsel, promptly after statements therefor are received and other reasonable costs incurred in the defense of such matter, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-six (6) year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.c. This
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages substantially similar to those set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company (to the extent allowable under applicable Delaware law), which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is prospective in nature and is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Articles of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws (including provisions pertaining to advances of legal fees), indemnify and hold harmless, each present or and former director or officer director, officer, employee, fiduciary and agent of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement of, or in connection with with, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including including, without limitation actions or omissions relating to limitation, the Merger) for a period of six years after the date hereoftransactions contemplated by this Agreement). In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees directors or agents officers of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After Following the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawslaw, indemnify and hold harmless, harmless each present or and former director or officer of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED 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 claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, in each case to the Merger) for a period of six years after same extent as provided in the Company Charter Documents or any applicable contract or agreement as in effect on the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments, but only in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement with such Indemnified Party or applicable law, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the parties under such agreements being referred to as the "COVERED PERSONS") with the Company's directors and officers existing at or before the Effective Time, provided such agreements do not violate Section 5.01(f).
(d) In addition, Parent will provide, or cause the Surviving Corporation to provide, for a period of six not less than four years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers (as defined to maintain in effectmean those persons insured under such policy) with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time (the "D&O INSURANCE") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much of such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent bought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective Certificate of Incorporation or By-Laws of the Company or the Subsidiaries 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will must be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.the
Appears in 1 contract
Samples: Merger Agreement (First Alert Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent bought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective Certificate of Incorporation or By-Laws of the Company or the Subsidiaries 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will must be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and providedPROVIDED, -------- furtherFURTHER, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 5.8(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 present or former director, officer or employee of the Company or any of its Subsidiaries.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies 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 those 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 directors of Individualpolicies; providedPROVIDED, howeverHOWEVER, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coveragePROVIDED FURTHER, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 200% of the annual premium.
(d) Individual From and after the Effective Time, Parent shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period guarantee the obligations of one year, at a total cost not to exceed $300,000the Surviving Corporation under this Section 5.8.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties. In the event that Parent or Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation (as the case may be) assume the obligations of Parent and the Surviving Corporation set forth in this Section.
Appears in 1 contract
Samples: Merger Agreement (Sunbeam Corp/Fl/)
Indemnification and Insurance. (a) From and after the Effective Time, Parent will cause the Surviving Corporation will to fulfill and honor in all respects the obligations of Individual which exist the Company pursuant to (i) each indemnification agreement currently in effect between the Company and each person who is or was a director or officer of the Company at or prior to the Effective Time and (ii) any indemnification provision under the Company's Restated Certificate of Incorporation or By-Laws as each is in effect on the date hereof (the persons to indemnify Individual's present be indemnified pursuant to the agreements or provisions referred to in clauses (i) and former directors and officers and their heirs(ii) of this Section 5.7(a) shall be referred to as, executors and assignscollectively, the "Indemnified Parties"). The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of exculpation from liability for monetary damages set forth in the Company's Restated Certificate of Incorporation and By-laws Laws on the date of Individualthis Agreement, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by lawany Indemnified Party.
(b) After Without limiting the provisions of Section 5.7(a), during the period ending six years after the Effective Time the Surviving Corporation willTime, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, Parent will indemnify and hold harmless, harmless each present or former director or officer of Individual or any of its subsidiaries Indemnified Party against and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against from any costs or expenses (including reasonable attorneys' fees), 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, to the extent arising such claim, action, suit, proceeding or investigation arises out of or pertaining pertains to (1) any action or omission or alleged action or omission in his or her capacity as a directordirector or officer of the Company or any of its subsidiaries (regardless of whether such action or omission, officeror alleged action or omission, employee occurred prior to, on or agent after the Closing Date) or (2) any of Individual occurring the transactions contemplated by this Agreement; 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 (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereofuntil such time as such claim is fully and finally resolved. In the event of any such claim, action, suit, proceeding or investigation investigation, (whether arising before or i) Parent will have the right to control the defense thereof after the Effective TimeTime (it being understood that, by electing to control the defense thereof, Parent will be deemed to have waived any right to object to the Indemnified Parties' entitlement to indemnification hereunder with respect thereto), (iii) any counsel retained by the Indemnified Parties with respect to the defense thereof for any period after the Effective Time will must be reasonably satisfactory to the Surviving CorporationParent, and (iiiii) after the Effective Time, the Surviving Corporation Parent will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) provided that in the event that any Indemnified Party is not entitled to indemnification hereunder, any amounts advanced on his or her behalf shall be remitted to the Surviving Corporation will cooperate in the defense of any such matterCorporation); provided, however, that neither Parent nor the Surviving -------- ------- Corporation nor any Indemnified Party, will not be liable for any settlement effected without its express written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claimsconsent. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them with respect to any single action unless there iscounsel for any Indemnified Party determines in good faith that, under applicable standards of professional conduct, a conflict exists or is reasonably likely to arise on any significant material issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary contained in this Section 5.7(b) or elsewhere in this Agreement, Parent agrees that it will not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim, action, suit, proceeding or investigation.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to Parent shall maintain in effect, if available, effect the current level and scope of directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies on terms comparable policy (a copy of which has been heretofore delivered to those applicable to the current directors of IndividualParent); provided, however, that in no event will -------- ------- the Surviving Corporation shall Parent be required to expend per in any one year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such insurance, and officers' liability provided, further, that if the annual premiums of such insurance coveragecoverage exceed such amount, Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(d) Individual shall use best effortsParent and the Surviving Corporation jointly and severally agree to pay all expenses, after consultation with Desktopincluding attorneys' fees, to negotiate that may be incurred by the Indemnified Parties in enforcing the indemnity and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies other obligations provided for a period of one year, at a total cost not to exceed $300,000in this Section 5.7.
(e) This Section 5.09 will 5.7 shall survive any termination of this Agreement and the consummation of the Merger at and the Effective Time, is intended to benefit Individualand may be enforced by the Company, Parent, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Sanmina Corp/De)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill Company and honor in Parent shall indemnify and hold harmless all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's past and present and former directors and officers or managers of the Company or any of its Subsidiaries and their each person who served as a director, officer, member, trustee, employee, agent 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, in each case, to the extent acting in such capacity (collectively, together with such Persons’ heirs, executors and assigns. The Certificate of Incorporation and By-laws of administrators, the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b“Covered Persons”) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") by Law against any costs or and expenses (including advancing attorneys' fees’ 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 claim, action, suit, proceeding actual or threatened Proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of acts or pertaining to any action omissions occurring at or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions acts or omissions relating to in connection with such Persons serving as an officer, director or other fiduciary in any entity at the Merger) request or for a period the benefit of six years after the date hereofCompany). In Without limiting the event of any such claimforegoing, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) from and after the Effective Time, Parent and the Surviving Corporation will pay Company shall indemnify and hold harmless the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable Covered Persons to the current directors of Individual; provided, however, that fullest extent permitted by Law for acts or omissions occurring in no event will -------- ------- connection with the Surviving Corporation be required to expend per year an amount process resulting in excess of two times and the annual premium currently paid by Desktop for its directors adoption and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination approval of this Agreement and the consummation of the Merger at 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 5.9(a) in accordance with the procedures (if any) set forth in the Company Organizational Documents, or the certificate or articles of incorporation and bylaws, or other organizational or governance documents, of any Subsidiary of the Company, and indemnification agreements, if any, in existence on the date of this Agreement; provided that, to the extent required by applicable Law, the person to whom expenses are advanced provides an undertaking to repay such advances if it is intended ultimately determined that such person is not entitled to benefit Individualindemnification pursuant to this Section 5.9(a). In the event of any such Proceeding for which indemnification is required pursuant to this Section 5.9(a), (A) the Surviving Company will have the right to control the defense thereof after the Effective Time; (B) each Covered Person will be entitled to retain his or her own counsel (the reasonable and documented fees and expenses of which will be paid by the Surviving Company), whether or not the Surviving Company elects to control the defense of any such Proceeding; and (C) the Surviving Company will not settle any such Proceeding without the prior written consent of such Covered Person (unless such settlement relates only to monetary damages for which the Surviving Company is entirely responsible, includes an unconditional release of such Covered Person from all liability arising out of such claim, suit, proceeding or investigation and does not include any admission of wrongdoing on the part of such Covered Person).
(b) For not less than six (6) years from and after the Effective Time, the certificate of incorporation and bylaws 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 prior to, 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 5.9(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 (6) years from and after the Effective Time, the Surviving Corporation and the Indemnified PartiesCompany shall, and will Parent shall cause the Surviving Company to, maintain for the benefit of the directors and officers of the Company and its Subsidiaries, as of the date of this Agreement and as of the Effective Time, an insurance and indemnification policy that provides coverage for events occurring at or 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 its Subsidiaries or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided that the Surviving Company shall not be binding required to pay an annual premium for the D&O Insurance in excess of three hundred percent (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. The provisions of the immediately 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, subject to the cap described in the preceding sentence), which policies provide such directors and officers with coverage for an aggregate period of at least six (6) years from and after the Effective Time with respect to claims arising from facts or events that occurred on or prior to the Effective Time, including in respect of the transactions contemplated by this Agreement. If such prepaid policies have been obtained prior to the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(d) In the event that Parent or the Surviving Company (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then 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 5.9.
(e) The obligations under this Section 5.9 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 5.9. In the event of any breach by the Surviving CorporationCompany or Parent of this Section 5.9, 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 5.9 as such fees are incurred, upon the written request of such Covered Person.
Appears in 1 contract
Samples: Merger Agreement (Arconic Corp)
Indemnification and Insurance. (a) From The By-Laws and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the By-Laws and Certificate of Incorporation and By-laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six five years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at who on or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws as in effect at the Effective Time, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Pioneer Electronic Corporation (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws or any applicable contract or agreement as in effect on the date hereof, in each case for a the period of six ending five years after the date hereofclosing of the Merger. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such sixfive-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six four years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Parent) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 125% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability provided, further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 125% of the annual premium and, provided further, that the Company may acquire "tail insurance" for periods after the Effective Time for a maximum one time premium of $1,000,000 in lieu of the insurance coveragecontinuation provision set forth above. The Company may request that Pioneer Electronic Corporation be named as an additional insured if it can do so at no additional cost.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will 5.7 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by lawLaw.
(b) After the Effective Time the Surviving Corporation willThe Company shall, to the fullest extent permitted under applicable law Law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, Parent or the Surviving Corporation shall, to the fullest extent permitted under applicable Law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent brought or filed, (x) arising out of or pertaining to the Transactions or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) for a period same extent as provided in the respective Certificate of six years after Incorporation or By-Laws of the Company or the Subsidiaries as in effect on the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will must be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, Parent or the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) Parent or the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that Parent or the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 5.8(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 present or former director, officer or employee of the Company or any of its Subsidiaries.
(c) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies 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 those 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 directors of Individualpolicies; provided, however, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and provided, further, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 150% of the annual premium. The Company has provided Parent with copies of all of the Company's directors' and officers' liability insurance coveragepolicies which are currently in effect. The aggregate annual premium payable by the Company under such policies is $49,500.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will 5.8 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Indemnification and Insurance. (a) From The articles of incorporation and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and Byby-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation at least as protective to any officer or director as those set forth in the Certificate articles of Incorporation incorporation and Byby-laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's articles of incorporation or by-laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Fimalac-U.S. and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate articles of Incorporation incorporation or Byby-laws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent brought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective articles of incorporation or by-laws of the Company or the 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), (i) any counsel retained by in which there exists no conflict between the interests of the indemnifying party and the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective TimeParty, the Surviving Corporation will pay indemnifying party shall have a right to assume and direct all aspects of the reasonable fees defense thereof, including settlement, and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will Indemnified Party shall cooperate in the defense of any such matter; provided. 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, howeverwhich shall not be unreasonably withheld, or (ii) the terms of the settlement provide that the Surviving -------- ------- Corporation will not 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 (which consent will to such settlement shall not be unreasonably withheldwithheld or delayed. Any Indemnified Party wishing to claim indemnification under this Section 6.4(b); and provided, -------- further, 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 upon learning of any such claim claim, action, suit, proceeding or claims will continue until investigation, shall notify Fimalac-U.S. and the disposition Surviving Corporation (but the failure so to notify shall not relieve the indemnifying party from any liability which it may have under this Section 6.4(b) except to the extent of any damages caused by such failure to the indemnifying party), and all shall deliver to Fimalac-U.S. and the Surviving Corporation the undertaking contemplated by Section 8.75(e) of the Illinois Law. If the indemnifying party does not assume the defense of any such claims. The action, the Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 Fimalac-U.S. and the Surviving Corporation in this Section 6.4(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 present or former director, officer or employee of the Company or any of its subsidiaries.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Fimalac-U.S. and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties. In the event that Fimalac-U.S. or Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Fimalac-U.S. or the Surviving Corporation (as the case may be) assume the obligations of Fimalac-U.S. and the Surviving Corporation set forth in this Section.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the First Merger Effective Time, solely to the Surviving Corporation will fulfill and honor in all respects extent that the obligations of Individual which exist Company or the Manager or any applicable Subsidiary thereof would be permitted to indemnify an Indemnified Person immediately prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the First Merger Effective Time, were directorsParent and the Company, officersas the surviving entity in the First Merger, employees or agents of Individual, unless such modification is required by law.
jointly and severally agree to (bi) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") harmless against 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 preparing to investigate, defend, be a witness in or participate in, any Proceeding, including any Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, claims, damagesdamages or liabilities, liabilities penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any claimactual or threatened Proceeding, actionand, suitupon receipt by Parent of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined in a final and non-appealable judgment entered by a court of competent jurisdiction that the Indemnified Person is not entitled to be indemnified nor be provided advancement of expenses with respect to each of the foregoing to, proceeding or investigation, whether civil, criminal, administrative or investigative, all Indemnified Persons to the fullest extent arising out permitted under applicable Law and (ii) honor the provisions regarding elimination of or pertaining to any action or omission liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in his or her capacity as a director, officer, employee or agent the Organizational Documents of Individual occurring the Company and the Manager immediately prior to the First Merger Effective Time Time, and ensure that the Organizational Documents of the Company and the Manager or any of their respective successors or assigns (including without limitation actions or omissions relating to the MergerMerger Sub II) shall, for a period of six years after following the date hereof. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the First Merger Effective Time, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and employees of the Surviving Corporation will pay Company and the reasonable fees and expenses Manager than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Section 6.9(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such counselIndemnified Person as provided herein, promptly after statements and shall be enforceable by such Indemnified Person and their respective heirs and representatives against Xxxxxx and the Manager and their respective successors and assigns.
(b) Parent shall maintain in effect, for six (6) years from the First Merger Effective Time, Parent’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the First Merger Effective Time with respect to Indemnified Persons (provided that Parent may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are received and (iii) no less favorable to the Surviving Corporation will cooperate in the defense of any such matterIndemnified Persons); provided, however, that in no event shall Parent be required to expend pursuant to this Section 6.9(b) more than an amount equal to 300% of current annual premiums paid by Parent for such insurance (the Surviving -------- ------- Corporation will not “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, Parent would be liable required to expend more than the Maximum Amount, Parent shall obtain the maximum amount of such insurance as is available for the Maximum Amount. If Parent in its sole discretion elects, then, in lieu of the obligations of Parent under this Section 6.9(b), Parent may (but shall be under no obligation to), prior to the First Merger Effective Time, purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the First Merger Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such. If a “tail policy” is purchased, Merger Sub II shall, and Parent shall cause Merger Sub II to, maintain such policies in full force and effect, and continue to honor the obligations thereunder.
(c) The rights of any settlement effected without its written consent Indemnified Person under this Section 6.9 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of the Company and the Manager, any indemnification agreements, or the DLLCA. The provisions of this Section 6.9 shall survive the consummation of the transactions contemplated by this Agreement for a period of six (which consent will not be unreasonably withheld)6) years and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and Representatives; and provided, -------- furtherhowever, that, that in the event that any claim or claims for indemnification or advancement set forth in this Section 6.9 are ------- asserted or made within such six-year six (6)-year period, all rights to indemnification and advancement in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm If Parent and/or the Manager, or any of their respective successors or assigns (in addition to local counseli) to represent them consolidates with respect or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any single action unless there isother Person, under applicable standards of professional conductthen, in each such case, to the extent necessary, a conflict on any significant issue between proper provision shall be made so that the positions successors and assigns of any two or more Indemnified Parties.
(c) For a period Parent and/or the Manager shall assume the obligations of six years after Parent and the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain Manager set forth in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coveragethis Section 6.9.
(d) Individual Parent shall use best effortspay all reasonable expenses, after consultation with Desktopincluding reasonable attorneys’ fees, to negotiate that may be incurred by any Indemnified Person in enforcing the indemnity and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000other obligations provided in this Section 6.9.
(e) This The obligations of Parent and Merger Sub II under this Section 5.09 will survive 6.9 shall not be terminated, amended or modified in any termination manner so as to adversely affect any Indemnified Person (including their successors, heirs and legal representatives) to whom this Section 6.9 applies without the consent of such Indemnified Person. It is expressly agreed that, notwithstanding any other provision of this Agreement that may be to the contrary, (i) the Indemnified Persons to whom this Section 6.9 applies shall be third-party beneficiaries of this Section 6.9, and the (ii) this Section 6.9 shall survive consummation of the Merger at the Effective TimeMergers and shall be enforceable by such Indemnified Persons and their respective successors, is intended to benefit Individual, the Surviving Corporation heirs and legal representatives against Parent and the Indemnified Parties, Merger Sub II and will be binding on all their respective successors and assigns of the Surviving Corporationassigns.
Appears in 1 contract
Samples: Merger Agreement (Oneok Inc /New/)
Indemnification and Insurance. (a) From and after MBI is organized under the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain state of Delaware. Section 145 of the DGCL permits a corporation to include in its organizational documents, and in agreements between the corporation and its directors and officers, provisions with respect expanding the scope of indemnification beyond that specifically provided by current law. The MBI charter provides that MBI shall indemnify each director or officer of MBI to the fullest extent permitted by applicable law and provides that MBI is authorized to indemnify any employee or agent of MBI to the fullest extent permitted by applicable law. The MBI bylaws provide indemnification and elimination of liability for monetary damages set forth in to the Certificate of Incorporation and By-laws of Individual, which provisions will not fullest extent permitted by applicable law (including as it presently exists or may thereafter be amended) to any person who was or is a party or is threatened to be made a party to any threatened, repealed pending, or otherwise modified for completed action or proceeding, by reason of the fact that he or is or was a period director, officer, employee, or agent of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, MBI or is or was serving at the Effective Timerequest of MBI as a director, were directorsofficer, officersemployee, employees or agents agent of Individualanother entity against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person. The MBI bylaws further provide for the advancement of the expenses (including attorneys’ fees) incurred by any such person in defending any proceeding in advance of its final disposition; provided, unless such modification is however, that, to the extent required by law.
(b) After , such advancement shall be made only upon receipt of an undertaking by such person to repay all amounts advanced if it should be ultimately determined that he or she is not entitled to be indemnified under the Effective Time the Surviving Corporation will, MBI bylaws or otherwise. XXX has also entered into indemnification agreements with each of its directors and executive officers. These agreements require MBI to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to MBI, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. Pursuant to the terms of the merger agreement, MBI directors and officers will be entitled to certain ongoing indemnification and coverage, including under directors’ and officers’ liability insurance policies following the merger. For a more detailed description of the provisions of the merger agreement relating to director and officer indemnification, please see the section entitled “The Merger Agreement — Directors’ and Officers’ Insurance and Indemnification” contained in this proxy statement/prospectus. This section sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation that is based on or otherwise related to the merger, referred to as “golden parachute” compensation by the applicable law SEC disclosure rules, for each of MBI’s executive officers who are designated as “named executive officers” on the Amendment No. 1 to Annual Report on Form 10-K/A, filed by MBI on April 29, 2022, other than each of MBI’s former Chief Financial Officers, neither of whom have any separation, severance, acceleration or under the Surviving Corporation's Certificate of Incorporation other payments that will or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement may be payable in connection with any claimthe merger. The table below sets forth, actionfor the purposes of this golden parachute disclosure, suitthe amount of payments and benefits (on a pre-tax basis) that each of MBI’s named executive officers would receive, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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), assuming that (i) any counsel retained by the Indemnified Parties merger occurs on June 30, 2022 (which is the assumed date solely for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporationpurposes of this golden parachute compensation disclosure), (ii) after the Effective Timeeach of MBI’s named executive officers will experience a qualifying termination of employment on that date, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) each named executive officer’s base salary rate and annual target bonus remain unchanged from those in effect as of May 31, 2022, (iv) the Surviving Corporation will cooperate in the defense MBI RSUs and MBI Options outstanding as of any such matter; providedMay 31, however2022 vest and settle or are exercised, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and providedrespectively, -------- further, 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 based on a per share price of any such claim or claims will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time$1.11, the Surviving Corporation will use all commercially reasonable efforts average closing market price of shares of MBI Common Stock over the first five business days following the first public announcement of the merger (and, other than ordinary course vesting in accordance with the terms of the applicable award agreement, do not otherwise vest prior to maintain in effectJuly 15, if available2022), directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies (v) no named executive officer receives any additional equity grants on terms comparable to those applicable or prior to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.merger and
Appears in 1 contract
Samples: Merger Agreement
Indemnification and Insurance. (a) From and after the Effective Time, EAST and the Surviving Corporation will fulfill and honor in all material respects the obligations of Individual which exist WEST pursuant to any indemnification agreements between WEST and its directors and officers in effect on the date hereof in respect of acts or omissions occurring on or prior to the date hereof Effective Time; provided, however, that such obligations shall be subject to indemnify Individual's present and former directors and officers and their heirs, executors and assignsany limitation imposed from time to time under applicable law. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages substantially similar to those set forth in the Certificate of Incorporation and By-laws of IndividualWEST as of the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of IndividualWEST, unless such modification is required by law.
(b) After the Effective Time Time, EAST and the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawslaw, indemnify and hold harmless, each present or and former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns WEST (collectively, the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, damages and liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, investigation to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual WEST or arising out of or pertaining to the transactions contemplated by this Agreement occurring on or prior to the Effective Time (including without limitation actions or omissions relating to the Merger) 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)investigation, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationCorporation and EAST, (ii) after the Effective Time, EAST and the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, provided, that the Indemnified Party to whom such expenses are advanced provides an undertaking (without delivering a bond or other security) to repay such advance if it is ultimately determined that such person is not entitled to indemnification and (iii) EAST and the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that neither the Surviving -------- ------- Corporation nor EAST will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld)consent; and provided, -------- further, that such indemnification shall be subject to any limitation imposed from time to time under applicable law; and provided, further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, EAST will cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance in respect of acts or omissions occurring on or prior to the Effective Time covering those persons who are currently covered by IndividualWEST's Directors, Officers directors' and Company Liability officers' liability insurance policies policy on terms comparable substantially similar to those applicable to the current directors of IndividualEAST; provided, however, that in no event will -------- ------- EAST or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop WEST, which amount has been disclosed to EAST, for its directors such coverage and officers' liability if EAST or the Surviving Corporation is unable to obtain the insurance coveragerequired by this Section 5.09, it shall obtain as much coverage as is available for such 150% of the annual premium.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, and is intended to be for the benefit Individualof, and shall be enforceable by, each of WEST, the Surviving Corporation and the Indemnified Parties, Parties and will be binding on all successors his or her heirs and assigns of the Surviving Corporationrepresentatives.
Appears in 1 contract
Indemnification and Insurance. (a) From The By-Laws and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the By-Laws and Certificate of Incorporation and By-laws of Individualthe Company, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, (iii) any written determination made by such counsel shall, in the first instance and subject to any contrary determination by a court of competent jurisdiction, be presumptively binding on the parties with respect to whether an Indemnified Party's conduct complies with the standards of applicable law, the Company's Certificate of Incorporation or By-Laws, or any such applicable contract or agreement, and (iiiiv) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "Officer Employees") with the Company's directors and officers existing at or before the Effective Time.
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective TimeClosing Date, Parent will use reasonable efforts to cause the Surviving Corporation will Company to fulfill and honor in all respects the obligations of Individual which exist the Company pursuant to its articles of incorporation and bylaws and any indemnification agreements between the Company and each of its respective directors and officers existing prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assignsClosing Date. The Certificate articles of Incorporation incorporation and By-laws bylaws of the Surviving Corporation Company will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate articles of Incorporation organization and By-laws bylaws of Individualthe Company prior to the Closing Date, which provisions will not be amended, repealed or otherwise modified for a period of six four years from the Effective Time Closing Date in any manner that would adversely affect the rights thereunder of individuals who, at immediately prior to the Effective TimeClosing Date, were directors, officers, employees directors or agents officers of Individualthe Company, unless such modification is required by law.
(b) After From and after the Effective Time Closing Date, Parent will use reasonable efforts to cause the Surviving Corporation willCompany, to the fullest extent permitted under applicable law or under the Surviving CorporationCompany's Certificate of Incorporation or By-lawsorganizational documents and bylaws, to indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns the Company (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' ------------------- fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a directordirector or officer of the Company in connection with the negotiation, officer, employee approval or agent consummation of Individual occurring prior to this Agreement or the Effective Time (including without limitation actions or omissions relating to the Merger) Offer 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 TimeClosing Date), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will Closing Date must be reasonably satisfactory to the Surviving CorporationCompany, (ii) after the Effective TimeClosing Date, the Surviving Corporation Company will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation Company will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation Company will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims; 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 California Law, the Company's organizational documents or bylaws or such agreements, as the case may be, shall be made by independent legal counsel selected by the Indemnified Party and reasonably acceptable to the Company; and provided, further, that nothing in this Section 5.13 shall impair any rights or obligations of any present or former employees, agents, directors or officers of the Company. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
Appears in 1 contract
Samples: Recapitalization and Exchange Offer Agreement (Internet Capital Group Inc)
Indemnification and Insurance. (a) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individual, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsto, indemnify and hold harmless, harmless each present or and former director or and officer of Individual or any the Company determined as of its subsidiaries and his or her heirs, executors and assigns the Effective Time (collectively, the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damagesdamages or liabilities (collectively, liabilities and amounts paid in settlement "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of or pertaining to any action matters existing or omission in his occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including including, without limitation actions limitation, in connection with the transactions contemplated by this Agreement), whether asserted or omissions relating claimed prior to, at or after the Effective Time, to the Mergerfullest extent permitted under the NJCA (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification).
(b) for a period Any Indemnified Party wishing to claim indemnification under paragraph (a) of six years after this Section 9.02, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the date hereofSurviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any period after legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the Effective Time will be reasonably satisfactory to the Surviving Corporationdefense thereof, (ii) after the Effective Time, except that if the Surviving Corporation will pay elects not to assume such defense or counsel for the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them with respect to any single action unless advises that there is, under applicable standards are issues which raise conflicts of professional conduct, a conflict on any significant issue interest between the positions of any two or more Indemnified Parties.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and will the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received.
(c) If Parent or any of its successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be binding on the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then and in each such case, proper provisions shall be made so that the successors and assigns of Parent shall assume all of the Surviving Corporationobligations set forth in this Section.
(d) The provisions of this Section are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Restated Certificate of Incorporation and the By-laws of Individualthe Company, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, -40- 45 indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual or any of its subsidiaries and his or her heirs, executors and assigns the Company (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Restated Certificate of Incorporation or By-laws 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "Officer Employees") with the Company's directors and officers existing at or before the Effective Time.
(d) In addition, Parent shall provide, or cause the Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers with an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 200% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Samples: Merger Agreement (Innerdyne Inc)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of IndividualCompany Charter Documents, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, harmless each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company Charter Documents 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 hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; provided that the Indemnified Parties shall be required to reimburse the Surviving Corporation for such payments in the circumstances and to the extent required by the Company Charter Documents, any applicable contract or agreement or applicable law and (iii) the Surviving Corporation will shall cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and provided, -------- further, 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 will shall continue until the final disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm to represent them in each applicable jurisdiction (in addition to other than local counsel) 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, 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 retain one separate law firm in each applicable jurisdiction (other than local counsel).
(c) For The Surviving Corporation shall assume, honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements, employment agreements, severance agreements, retention bonuses and similar agreements (the parties under such agreements being referred to as the "Covered Persons") with the Company's directors and officers existing at or before the Effective Time, provided such agreements (x) do not violate Section 4.01(f) or (y) are entered into pursuant to this Section 5.06.
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers (and former directors and officers, to maintain in effectthe extent covered under the Company's current insurance and indemnification policy for directors and officers) with an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time (the "D&O Insurance") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individualbest available coverage; provided, however, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 250% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.06.
(f) This Section 5.09 will 5.06 shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons.
(g) Parent and Merger Sub agree that Ronald A. Ostertag, on bxxxxx xx xxx Xxxxxny, may grant the retention bonuses to be paid to employees of the Company as described in Section 5.06 of the Company Disclosure Schedule.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, Parent will cause the Surviving Corporation will to fulfill and honor in all respects the obligations of Individual which exist the Company pursuant to (i) each indemnification agreement currently in effect between the Company and each person who is or was a director or officer of the Company at or prior to the Effective Time and (ii) any indemnification provision under the Company's Restated Certificate of Incorporation or By-Laws as each is in effect on the date hereof (the persons to indemnify Individual's present be indemnified pursuant to the agreements or provisions referred to in clauses (i) and former directors and officers and their heirs(ii) of this Section 5.7(a) shall be referred to as, executors and assignscollectively, the "Indemnified Parties"). The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of exculpation from liability for monetary damages set forth in the Company's Restated Certificate of Incorporation and By-laws Laws on the date of Individualthis Agreement, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of Individual, unless such modification is required by lawany Indemnified Party.
(b) After Without limiting the provisions of Section 5.7(a), during the period ending six years after the Effective Time the Surviving Corporation willTime, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, Parent will indemnify and hold harmless, harmless each present or former director or officer of Individual or any of its subsidiaries Indemnified Party against and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against from any costs or expenses (including reasonable attorneys' fees), 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, to the extent arising such claim, action, suit, proceeding or investigation arises out of or pertaining pertains to (1) any action or omission or alleged action or omission in his or her capacity as a directordirector or officer of the Company or any of its subsidiaries (regardless of whether such action or omission, officeror alleged action or omission, employee occurred prior to, on or agent after the Closing Date) or (2) any of Individual occurring the transactions contemplated by this Agreement; 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 (including without limitation actions or omissions relating to the Merger) for a period of six years after the date hereofuntil such time as such claim is fully and finally resolved. In the event of any such claim, action, suit, proceeding or investigation investigation, (whether arising before or i) Parent will have the right to control the defense thereof after the Effective TimeTime (it being understood that, by electing to control the defense thereof, Parent will be deemed to have waived any right to object to the Indemnified Parties' entitlement to indemnification hereunder with respect thereto), (iii) any counsel retained by the Indemnified Parties with respect to the defense thereof for any period after the Effective Time will must be reasonably satisfactory to the Surviving CorporationParent, and (iiiii) after the Effective Time, the Surviving Corporation Parent will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) provided that in the event that any Indemnified Party is not entitled to indemnification hereunder, any amounts advanced on his or her behalf shall be remitted to the Surviving Corporation will cooperate in the defense of any such matterCorporation); provided, however, that neither Parent nor the Surviving -------- ------- Corporation nor any Indemnified Party, will not be liable for any settlement effected without its express written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claimsconsent. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them with respect to any single action unless there iscounsel for any Indemnified Party determines in good faith that, under applicable standards of professional conduct, a conflict exists or is reasonably likely to arise on any significant material issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary contained in this Section 5.7(b) or elsewhere in this Agreement, Parent agrees that it will not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such claim, action, suit, proceeding or investigation.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to Parent shall maintain in effect, if available, effect the current level and scope of directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies on terms comparable policy (a copy of which has been heretofore delivered to those applicable to the current directors of IndividualParent); provided, however, that in no event will shall -------- ------- the Surviving Corporation Parent be required to expend per in any one year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such insurance, and officers' liability provided, -------- further, that if the annual premiums of such insurance coveragecoverage exceed such ------- amount, Parent shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(d) Individual shall use best effortsParent and the Surviving Corporation jointly and severally agree to pay all expenses, after consultation with Desktopincluding attorneys' fees, to negotiate that may be incurred by the Indemnified Parties in enforcing the indemnity and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies other obligations provided for a period of one year, at a total cost not to exceed $300,000in this Section 5.7.
(e) This Section 5.09 will 5.7 shall survive any termination of this Agreement and the consummation of the Merger at and the Effective Time, is intended to benefit Individualand may be enforced by the Company, Parent, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Mandaric Milan)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist Award pursuant to any indemnification agreements between Award and its directors and officers existing prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assignshereof. The Certificate Articles of Incorporation and By-laws Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate Articles of Incorporation and By-laws Bylaws of IndividualAward, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at immediately prior to the Effective Time, were directors, officers, employees or agents of IndividualAward, unless such modification is required by law.
(b) After the Effective Time Time, the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate Articles of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns Award (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual occurring prior Award arising out of or pertaining to the Effective Time (including without limitation actions or omissions relating to the Merger) transactions contemplated by this Agreement 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving CorporationCorporation and Phoenix, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that neither Phoenix, the Surviving -------- ------- Corporation nor any Indemnified Party will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and providedPROVIDED, -------- furtherFURTHER, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) 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.A-34
(c) For a period of six years after the Effective Time, Phoenix will cause the Surviving Corporation will to use all its commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by IndividualAward's Directors, Officers directors' and Company Liability officers' liability insurance policies policy on terms comparable to those applicable to the then current directors and officers of IndividualPhoenix; providedPROVIDED, howeverHOWEVER, that in no event will -------- ------- Phoenix or the Surviving Corporation be required to expend per year an amount in excess of two times 200% of the annual premium currently paid by Desktop Award for its directors and officers' liability insurance coveragesuch coverage or such coverage as is available for such 200% of the annual premium.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 5.13 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualAward, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.
(e) Phoenix and the Surviving Corporation jointly and severally agree to pay all expenses, including attorney's fees, that may be incurred by the Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 5.13. 5.15
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Phoenix Technologies LTD)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws Laws of Individualthe Company on the date hereof, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at who on or prior to the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required by law.
(b) After The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, Parent and the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsLaws as in effect at the Effective Time, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Certificate of Incorporation or By-Laws 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld); and providedPROVIDED, -------- furtherFURTHER, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-six- year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) Parent and the Surviving Corporation shall 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 before the Effective Time.
(d) For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individualthe Company's Directors, Officers directors' and Company Liability officers' liability insurance policies policy (a copy of which has been made available to Parent) on terms comparable to those now applicable to directors and officers of the current directors of IndividualCompany; providedPROVIDED, howeverHOWEVER, that in no event will -------- ------- shall Parent or the Surviving Corporation be required to expend per year an amount in excess of two times 150% of the annual premium currently paid by Desktop the Company for its directors such coverage; and officers' liability insurance coverage.
(d) Individual PROVIDED FURTHER, that if the premium for such coverage exceeds such amount, Parent or the Surviving Corporation shall use best efforts, after consultation purchase a policy with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies the greatest coverage available for a period such 150% of one year, at a total cost not to exceed $300,000the annual premium.
(e) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and the Indemnified Parties, and will shall be binding on all successors and assigns of Parent and the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties.
Appears in 1 contract
Samples: Merger Agreement (KKR Associates)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Amended and Restated Certificate of Incorporation and By-laws the Bylaws of Individualthe Company, which provisions will shall not be amended, repealed modified or otherwise modified repealed for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who, who at the Effective Time, Time were directors, officers, employees or agents of Individualthe Company, unless such modification is required after the Effective Time by law.
(b) After the Effective Time the The Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified PartiesINDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), 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, to the extent (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions occurring at or her capacity as a director, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the Company's Amended and Restated Certificate of Incorporation or Bylaws 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)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation (and, for these purposes, Xxxxx, Day, Xxxxxx & Xxxxx shall be deemed reasonably satisfactory to the Surviving Corporation), (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; providedPROVIDED, howeverHOWEVER, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheldwithheld or delayed); and providedPROVIDED, -------- furtherFURTHER, 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 will shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, 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 retain one separate law firm in each applicable jurisdiction.
(c) For The Surviving Corporation shall honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements and employment agreements (the employee parties under such agreements being referred to as the "OFFICER EMPLOYEES") with the Company's directors and officers existing at or before the Effective Time.
(d) 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 Surviving Corporation will use all commercially reasonable efforts Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or prior to maintain in effectthe Effective Time (the "D&O INSURANCE") that is no less favorable than the existing policy or, if availablesubstantially equivalent insurance coverage is unavailable, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directorsthe best available coverage; PROVIDED, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, howeverHOWEVER, that in no event will -------- ------- Parent and the Surviving Corporation shall not be required to expend per year pay an amount annual premium for the D&O Insurance in excess of two times 300% of the annual premium currently paid by Desktop the Company for its directors and officers' liability insurance coverage.
(d) Individual such insurance, but in such case shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies purchase as much such coverage as possible for a period of one year, at a total cost not to exceed $300,000such amount.
(e) From and after the Effective Time, Parent shall unconditionally guarantee the timely payment of all funds owing by, and the timely performance of all other obligations of, the Surviving Corporation under this Section 5.05.
(f) This Section 5.09 will shall survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit Individualthe Company, the Surviving Corporation and Corporation, the Indemnified Parties, and will the Officer Employees, shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties. Without limiting the generality or effect of the foregoing, in the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges with any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the continuing or surviving corporation or purchase of such properties and assets assumes the obligations set forth in this Section 5.05.
Appears in 1 contract
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assigns. The Certificate Articles of Incorporation and By-laws Laws of the Surviving Corporation will shall contain the provisions with respect to indemnification and elimination of liability for monetary damages exculpation set forth in the Certificate of Incorporation Company Articles and the Company By-laws of IndividualLaws, which provisions will shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, who at the Effective Time, Time or at any time prior thereto were directors, officers, employees or agents of Individualthe Company, unless such modification is required by lawLaw.
(b) After The Company shall, to the fullest extent permitted under applicable Law or under the Company Articles or the Company By-Laws and regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time Time, the Surviving Corporation willshall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate Articles of Incorporation or By-lawsLaws, indemnify and hold harmless, each present and former director, officer or former director or officer employee of Individual the Company or any of its subsidiaries and his or her heirs, executors and assigns affiliates (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damagesdamages and liabilities incurred in connection with, liabilities and amounts paid in settlement in connection with of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative and wherever asserted, to the extent bought or filed, (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any action acts or omission in his omissions or her capacity as a director, officer, employee alleged acts or agent of Individual omissions occurring at or prior to the Effective Time (including without limitation actions or omissions relating Time, to the Merger) same extent as provided in the respective Articles of Incorporation or By-Laws of the Company and its subsidiaries and affiliates 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received, and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will shall not be liable for any settlement effected without its written consent (which consent will shall not be unreasonably withheld, delayed or conditioned); and provided, -------- further, that, in the event that any claim or claims for indemnification are ------- is asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims will shall continue until the disposition of any and all such claimsclaim. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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 5.6(b) shall extend, on the same terms to, and shall inure to the benefit of and shall be enforceable by any present or former director, officer or employee of the Company or any of its subsidiaries or affiliates and each other person or entity who controls, or in the past controlled the Company or any of its subsidiaries or affiliates.
(c) For a period of six years after Not later than the Effective Time, Parent shall obtain, and provide to each of the Surviving Corporation will use all commercially reasonable efforts Company's then current directors and officers a certificate of insurance coverage with respect to, so-called "tail insurance" with respect to maintain in effect, if available, directors' that portion of the Company's director's and officers' officer's liability insurance covering those persons who are currently covered by Individual's Directors, Officers policy that serves to reimburse the present and former directors and officers (determined as of the Effective Time) of the Company Liability insurance policies on terms comparable to those applicable or any of its subsidiaries or affiliates (the "Covered Persons") (as opposed to the current directors portion that serves to reimburse the Company) with respect to any claim brought against any such director or officer during the six-year period beginning as of Individualthe Effective Time and arising from facts or events which occurred before the Effective Time, which insurance shall contain at least the same coverage and amounts, and contain terms and conditions no less advantageous, as the coverage currently provided by the Company; provided, however, that in no event will -------- ------- the Surviving Corporation shall Parent be required to expend per year an more than 250% of the current amount in excess expended by the Company to maintain or procure such directors and officers insurance coverage; provided, further, that if Parent is unable to maintain or obtain the insurance called for by this Section 5.6(c), Parent shall use its reasonable best efforts to obtain as much comparable insurance as is available at such 250% of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coveragepremium.
(d) Individual shall use best efforts, after consultation with Desktop, to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000.
(e) This Section 5.09 will 5.6 shall survive any termination of this Agreement and the consummation of the Merger at the Effective TimeMerger, is intended to benefit Individualthe Company, the Surviving Corporation Corporation, the Indemnified Parties and the Indemnified PartiesCovered Persons, and will shall be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties and the Covered Persons. In the event that Parent or the Surviving Corporation or any of their successors or assigns (i) consolidates or merges into any other person or entity 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 or entity, then and in such case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation (as the case may be) assume the obligations of Parent and the Surviving Corporation set forth in this Section 5.6.
(e) From and after the Effective Time, Parent unconditionally guarantees the obligations of the Surviving Corporation arising under this Section 5.6
Appears in 1 contract
Samples: Merger Agreement (Pennichuck Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual AVANT which exist prior to the date hereof to indemnify Individual's AVANT’s present and former directors and officers and their heirs, executors and assignsofficers. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages that provide at least as much coverage as those set forth in the AVANT’s Certificate of Incorporation and By-laws of IndividualBylaws on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of IndividualCelldex, unless such modification is required by law and then only to the minimum extent required by such law.
(b) After the Effective Time Time, the Surviving Corporation and Celldex will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawslaw, indemnify and hold harmless, each present or and former director or officer of Individual or any of its subsidiaries and his or her heirs, executors and assigns AVANT (collectively, the "“Indemnified Parties"”) against any costs or expenses (including attorneys' ’ fees), 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, to the extent arising out of or pertaining to the transactions contemplated by this Agreement or otherwise pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual AVANT occurring prior to the Effective Time (including without limitation actions or omissions relating to the Merger) same extent as provided in AVANT’s Certificate of Incorporation and Bylaws for a period of six (6) years after the date hereofEffective Time. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time)) and subject to the specific terms of any indemnification contract, (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received received; provided, however, that any person to whom fees and expenses are advanced shall provide an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification; and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its prior written consent (which consent will not be unreasonably withheld); and , delayed or conditioned provided, -------- further, that, in the event that any claim or claims for indemnification are ------- asserted or made within such six-six year period, all rights to indemnification in respect of any such claim or claims will continue until the disposition of any and all such claims). The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) to represent them in each applicable jurisdiction 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, in which case each Indemnified Party with respect to whom such a conflict exists (or group of such Indemnified Parties who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.
(c) For a period of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.
(d) Individual shall use best effortsAVANT shall, after consultation with DesktopCelldex, to negotiate and secure a "“tail" ” on its existing Directorsdirectors, Officers officers and Company Liability Celldex liability insurance policies for a period of one yearsix (6) years, at a total cost per year not to exceed $300,000300% of last year’s annual premium (the “Maximum Premium”), which cost shall be paid by AVANT. If AVANT is unable to obtain the “tail” insurance described in the first sentence of this Section 5.7(c) for an amount equal to or less than the Maximum Premium, AVANT shall be entitled to obtain as much comparable “tail” insurance as possible for an amount equal to the Maximum Premium.
(ed) This Section 5.09 5.7 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualAVANT, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving CorporationCorporation and shall be enforceable by the Indemnified Parties as third party beneficiaries.
Appears in 1 contract
Indemnification and Insurance. (a) From Licensee shall indemnify, defend and after hold harmless the Effective Time, the Surviving Corporation will fulfill Foundation and honor in all respects the obligations of Individual which exist prior to the date hereof to indemnify Individual's present its current and former directors and officers and their heirsdirectors, executors and assigns. The Certificate of Incorporation and By-laws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages set forth in the Certificate of Incorporation and By-laws of Individualboard members, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directorstrustees, officers, employees or employees, and agents of Individualand their respective successors, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each present or former director or officer of Individual or any of its subsidiaries and his or her heirs, executors heirs and assigns (collectively, the "Indemnified Parties") “Indemnitees”), from and against any costs or expenses (including attorneys' fees)and all claims, judgmentsliabilities, finescosts, losses, claimsexpenses, damages, liabilities deficiencies, losses or obligations of any kind or nature (including reasonable attorneys’ fees and amounts paid in settlement in connection with any claimother costs and expenses of litigation) (collectively “Claims”) based upon, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent arising out of of, or pertaining otherwise relating to any action or omission in his or her capacity as a directorthis Agreement, officer, employee or agent of Individual occurring prior to the Effective Time (including without limitation actions or omissions any cause of action relating to the Mergerproduct liability concerning any product, process, or service made, used, or sold pursuant to any right or license granted under this Agreement.
(b) for a period of six years after the date hereof. In the event of any such claimLicensee shall, actionat its own expense, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be provide attorneys reasonably satisfactory acceptable to the Surviving Corporation, (iiFoundation to defend against any actions brought or filed against any Indemnitee(s) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as group may retain only one law firm (in addition to local counsel) to represent them hereunder with respect to any single action unless there isthe subject of indemnity contained herein, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two whether or more Indemnified Partiesnot such actions are rightfully brought.
(c) For a period Beginning at the time any such product, process or service is being commercially distributed or sold (other than for the purpose of six years after the Effective Timeobtaining regulatory approvals) by Licensee or by any sublicensee or agent of Licensee, the Surviving Corporation will use all commercially reasonable efforts to Licensee shall, at its sole cost and expense, procure and maintain in effect, if available, directors' and officers' commercial general liability insurance covering those persons who in amounts not less than $2,000,000 per incident and $4,000,000 annual aggregate and naming the Indemnitees as additional insureds. During clinical trials of any such product, process, or service, Licensee shall, at its sole cost and expense, procure and maintain commercial general liability insurance in such equal or lesser amount as the Foundation shall require, naming the Indemnitees as additional insureds. Such commercial general liability insurance shall provide (i) product liability coverage and (ii) broad form contractual liability coverage for Licensee’s indemnification under this Agreement. If Licensee elects to self-insure all or part of the limits described above (including deductibles or retentions that are currently covered by Individual's Directors, Officers and Company Liability insurance policies on terms comparable to those applicable to the current directors of Individual; provided, however, that in no event will -------- ------- the Surviving Corporation be required to expend per year an amount in excess of two times $250,000 annual aggregate) such self-insurance program must be acceptable to the annual premium currently paid by Desktop for Foundation in its directors and officers' sole discretion. The minimum amounts of insurance coverage required shall not be construed to create a limitation of Licensee’s liability insurance coveragewith respect to its indemnification under this Agreement.
(d) Individual Licensee shall use best effortsprovide the Foundation with written evidence of such insurance upon request of the Foundation. Licensee shall provide the Foundation RXi — Foundation License — Optimized E75 (Peoples) with written notice at least fifteen (15) days prior to the cancellation, after consultation with Desktopnon-renewal, or material change in such insurance; if Licensee does not obtain replacement insurance providing comparable coverage within such fifteen (15) day period, the Foundation shall have the right to negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a terminate this Agreement effective at the end of such fifteen (15) day period of one year, at a total cost not to exceed $300,000without notice or any additional waiting periods.
(e) This Section 5.09 will survive any Licensee shall maintain such commercial general liability insurance beyond the expiration or termination of this Agreement during (i) the period that any product, process, or service, relating to, or developed pursuant to, this Agreement is being commercially distributed or sold by Licensee or by a sublicensee or agent of Licensee and (ii) a reasonable period, but in no event less than five (5) years, after the consummation of the Merger at the Effective Timeperiod referred to in clause (i), is intended to benefit Individual, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporationabove.
Appears in 1 contract
Samples: Exclusive License Agreement (Rxi Pharmaceuticals Corp)
Indemnification and Insurance. (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of Individual which exist SPC pursuant to any indemnification agreements between SPC and its directors and officers existing prior to the date hereof to indemnify Individual's present and former directors and officers and their heirs, executors and assignshereof. The Certificate of Incorporation and By-laws Bylaws of the Surviving Corporation will contain the provisions with respect to indemnification and elimination of liability for monetary damages not less favorable to officers and directors to those set forth in the Certificate of Incorporation and By-laws Bylaws of IndividualSPC, which provisions will not be amended, repealed or otherwise modified in a manner adverse to officers and directors for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at the Effective Time, were directors, officers, employees or agents of IndividualSPC, unless such modification is required by law.
(b) After the Effective Time the Surviving Corporation will, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-lawsBylaws, indemnify and hold harmless, each present or and former director or officer of Individual SPC or any of its subsidiaries and his or her heirs, executors and assigns (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), 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, to the extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee director or agent officer of Individual occurring prior SPC arising out of or pertaining to the Effective Time (including without limitation actions or omissions relating to the Merger) transactions contemplated by this Agreement 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), (i) any counsel retained by the Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving CorporationCorporation and Allegro, (ii) after the Effective Time, the Surviving Corporation will pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received and (iii) the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that the Surviving -------- ------- Corporation will not be liable for any settlement effected without its written consent (which consent will not be unreasonably withheld); and provided, -------- further, 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 will continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (in addition to local counsel) 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.
(c) For a period Allegro shall maintain through September 3, 1997 the current policies of six years after the Effective Time, the Surviving Corporation will use all commercially reasonable efforts to maintain in effect, if available, directors' and officers' liability insurance covering those persons who are currently covered maintained by Individual's Directors, Officers SPC. The Surviving Corporation shall pay all retentions and Company Liability insurance policies on terms comparable deductibles payable by any Indemnified Party with respect to those applicable to the current directors of Individualsuch policies; provided, however, that in no event will -------- ------- if and to the extent the Surviving Corporation has insufficient cash to pay such retentions and deductibles in full, the remaining amounts payable shall be required to expend per year an amount in excess of two times the annual premium currently paid by Desktop for its directors and officers' liability insurance coverage.Allegro. 24 25
(d) Individual Promptly after the Effective Time, Allegro shall use best effortsenter into indemnification agreements with directors and officers of SPC who become directors or officers of Allegro or of the Surviving Corporation, after consultation which agreements shall be substantially identical to those which Allegro has entered with Desktop, to negotiate its current officers and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, at a total cost not to exceed $300,000directors.
(e) This Section 5.09 5.13 will survive any termination of this Agreement and the consummation of the Merger at the Effective Time, is intended to benefit IndividualSPC, the Surviving Corporation and the Indemnified Parties, and will be binding on all successors and assigns of the Surviving Corporation.. If Allegro or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving person of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person or entity, then and in each such case, proper provision shall be made so that such successors or assigns of Allegro or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.13. 5.14
Appears in 1 contract
