Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications. 11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7. 11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder. 11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof. 11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Project and Approved Supplier Agreement (Einstein Noah Bagel Corp)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC Merger Agreement provides that from and all ENBC Subsidiaries and ENBC Franchisees forafter the Effective Time, the Surviving Corporation must indemnify, defend and hold ENBC harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer or director (the "Indemnified Party") of the Company or any of its Subsidiaries against all losses, claims, damages, liabilities, costs and all ENBC Subsidiaries expenses (including reasonable attorney's fees and ENBC Franchisees that purchase Products harmless from and againstexpenses), all expensesjudgments, fines, losses, costsand amounts paid in settlement (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, deficienciessuch consent not to be unreasonably withheld) in connection with any actual or threatened action, liabilities and damages suit, claim, proceeding or investigation (including related counsel feeswhether arising before or after the Effective Time) incurred (each a "Claim") to the extent that any such Claim is based on, or suffered by them resulting from: arises out of, (ai) the fact that such person is or was a director or officer of the Company or any breach of its Subsidiaries or is or was serving at the request of the Company or any representation of its Subsidiaries as a director or warranty made by officer of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the Supplier in Merger Agreement, or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier transactions contemplated thereby, in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action each case to the extent that any such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect Claim pertains to any claim matter or action to the extent such claim or action is attributable to the alterationfact arising, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation ofexisting, or conflict withoccurring prior to or at the Effective Time, any patent regardless of whether such Claim is asserted or trade secret of any third partyclaimed prior to, at or after the Effective Time, to the full extent such claim permitted under applicable law or action is attributable to the use by Company's Articles of Incorporation, By-Laws or indemnification agreements in effect at the Supplier date of the Formulationsexecution of the Merger Agreement, Procedures and Specifications or is attributable including provisions relating to the alteration, handling or misbranding advancement of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party expenses incurred in the defense of any claim action or action suit. In addition, the Merger Agreement provides that for a period of six years after the Effective Time, the Surviving Corporation must maintain the Company's existing policies of directors' and officers' liability insurance (or a "tail" policy), for the benefit of those persons who are covered by the other party hereunder.
11.4 ENBC Company's directors' and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any officers' liability insurance policies as of the matters described in clauses date of the Merger Agreement, to the extent that such liability insurance can be maintained at an annual cost to the Surviving Corporation of not greater than 200 percent of the premium for the current Company directors' and officers' liability insurance, provided that if such insurance (aor "tail" policy) through (d), inclusive, of Section 11.1 hereofcannot be so maintained at such cost, the Supplier shall indemnify ENBC or Surviving Corporation must maintain as much of such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated insurance as can be so maintained at a cost equal to make indemnity payments under any such agreement resulting from any 200 percent of the matters described in clauses (a) through (d), inclusive, current annual premiums of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, Company for such payment in accordance with Section 11.2 hereofinsurance.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Airtours PLC)
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, in the event of any claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to indemnify ENBC the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of NetGen or any of its Subsidiaries (the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of NetGen, any of its Subsidiaries or any of their respective predecessors or was prior to the Effective Time serving at the request of any such party as a director, officer, employee, fiduciary or agent of another corporation, partnership, trust or other enterprise, or (ii) this Agreement or any Ancillary Agreement, or any of the transactions contemplated hereby or thereby, and all ENBC Subsidiaries actions taken by an Indemnified Party in connection herewith, whether in any case asserted or arising before or after the Effective Time, NetScout and ENBC Franchisees forthe Surviving Company shall, and NetScout shall cause the Surviving Company to, indemnify and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againsteach such Indemnified Party, all expensesto the fullest extent to which such Indemnified Party would be entitled under applicable law, against any losses, claims, damages, liabilities, costs, deficiencies, liabilities and damages expenses (including related counsel fees) incurred or suffered by them resulting from: (a) any breach prompt payment of all reasonable attorneys’ fees and expenses in advance of the final disposition of any representation claim, suit, proceeding or warranty made investigation to each Indemnified Party to the fullest extent permitted by law), upon receipt of an undertaking, to the Supplier extent required by applicable law, from such Indemnified Party to repay such advanced expenses if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party could not lawfully be provided indemnification hereunder), judgments, fines and amounts paid in settlement in connection with any such threatened or pursuant actual claim, action, suit, proceeding or investigation. Any Indemnified Party wishing to claim indemnification under this Agreement; (b) any default in the performance Section 7.04, upon learning of any of the covenants such claim, action, suit, proceeding or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action)investigation, providedshall notify NetScout thereof, however, provided that the Supplier failure to so notify shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action not affect the obligations of NetScout under this Section 7.04 except (and only) to the extent such claim failure to notify materially prejudices NetScout.
(b) In furtherance and not in limitation of this Section 7.04, from and after the Effective Time, each of NetScout and the Surviving Corporation shall, and NetScout shall cause the Surviving Corporation to: (i) include and cause to be maintained in the Surviving Corporation’s (or action is attributable any successor’s) Certificate of Incorporation and Bylaws for a period of at least six (6) years from and after the Effective Time, provisions regarding elimination of liability of directors, indemnification of directors, officers and employees and advancement of expenses which are no less advantageous to the alterationintended beneficiaries than the corresponding provisions contained in NetGen’ Certificate of Incorporation and Bylaws, handling in each case as in effect on the date of this Agreement; and (ii) otherwise keep in full force and effect, and comply with the terms and conditions of, any agreement in effect as of the date of this Agreement between or misbranding of Products after they have been delivered to ENBC among NetGen or any ENBC Subsidiary of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party.
(c) If NetScout, the Surviving Corporation or ENBC Franchisee any of their respective successors or is attributable assigns (i) shall consolidate with or merge with or into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties or assets to the use by the Supplier any Person, then, in each case, NetScout shall take such action as may be necessary so that such Person shall assume all of the Formulations, Procedures and Specifications; or applicable obligations set forth in this Section 7.04.
(d) any claim The provisions of this Section 7.04 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or action brought her heirs and representatives, and are intended to be in addition to the rights otherwise available to the current officers and directors of NetGen by any federallaw, statecharter, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any statute, by-law or regulation relating to public health, the sale agreement. The obligations of food and drugs, NetScout and the safe conduct of business), provided, however, that Surviving Corporation under this Section 7.04 shall not be terminated or modified in such a manner as to adversely affect the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach rights of any representation or warranty made by ENBC in or pursuant to Indemnified Party under this Agreement; (b) any default in Section 7.04 without the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel consent of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderaffected Indemnified Party.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to (a) PharmAthene and the Surviving Subsidiary shall indemnify ENBC the current and former directors, officers, employees and agents of Theraclone and any other employees who have executed individual indemnity agreements as set forth on Section 6.9(a) of the Theraclone Disclosure Schedule (an “Indemnified Party”) for all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expensesclaims, losses, costsliabilities, deficienciesdamages, liabilities judgments, fines and damages reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer, director, employee or agent of Theraclone or, while a director or officer of Theraclone, is or was serving at the request of Theraclone or as a director, officer, employee or agent of another person, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted by Law, and such obligations shall survive the Merger, and shall continue in full force and effect in accordance with their respective terms from the Effective Time, until the expiration of the applicable statute of limitations with respect to any claims against such Indemnified Parties arising out of such acts or omissions. Each Indemnified Party will be entitled to advancement of expenses (including related counsel attorneys’ fees) incurred or suffered by them resulting from: (a) any breach in the defense of any representation such claim, action, suit, proceeding or warranty made investigation from each of PharmAthene and the Surviving Subsidiary within ten Business Days of receipt by PharmAthene or the Surviving Subsidiary from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are advanced provides an undertaking, to the extent required by the Supplier DGCL, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law. The certificate of incorporation and by-laws of the Surviving Subsidiary shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former and present officers, directors, employees and agents than are set forth in or pursuant to the Theraclone Certificate of Incorporation and the Theraclone Bylaws, as of the date of this Agreement; , which provisions shall not be amended, repealed or otherwise modified, except as required by applicable Law, for a period of six years from the Effective Time, in any manner that would adversely affect the rights thereunder of any such individuals.
(b) Theraclone may obtain at or prior to the Effective Time, prepaid (so-called “tail”) directors’ and officers’ liability insurance policies in respect of acts or omissions occurring at or prior to the Effective Time for six years from the Effective Time covering each Indemnified Party; provided, however, that, without the prior written consent of PharmAthene, Theraclone may not expend for any default twelve (12) month period therefor in the performance excess of any 300% of the covenants or agreements made amount paid by Theraclone for coverage for the period of twelve (12) months beginning on January 1, 2012. If Theraclone does not obtain “tail” insurance as contemplated by the Supplier immediately preceding sentence, then, for a period of six (6) years from the Effective Time PharmAthene shall cause the Surviving Subsidiary to maintain in this Agreementeffect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Theraclone with respect to matters arising on or before the Effective Time; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that after the Supplier Effective Time the Surviving Subsidiary shall have no obligation not be required to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action pay annual premiums in excess of 300% of the last annual premium paid by Theraclone prior to the extent such claim or action is attributable to the alteration, handling or misbranding date of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier this Agreement in respect of the Formulationscoverages required to be obtained pursuant hereto, Procedures but in such case shall purchase as much coverage as is reasonably available for such amount.
(c) The provisions of this Section 6.9 shall survive the consummation of the Merger and Specifications; or expressly are intended to benefit, and are enforceable by, each of the Indemnified Parties.
(d) If PharmAthene, the Surviving Subsidiary or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in either such case, proper provision shall be made so that the successors and assigns of PharmAthene or the Surviving Subsidiary, as the case may be, shall assume the obligations set forth in this Section 6.9.
(e) If any Indemnified Party makes any claim for indemnification or action brought advancement of expenses under this Section 6.9 that is denied by any federalPharmAthene or the Surviving Subsidiary, stateand a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, local then PharmAthene or foreign governmental agency the Surviving Subsidiary shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the production or sale fullest extent permitted by Law.
(f) The provisions of this Section 6.9 are intended to be in addition to the Products rights otherwise available to the current officers, directors, employees and agents of Theraclone by the Supplier (including without limitation any claim or action under any Law, charter, statute, by-law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationsagreement.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Pharmathene, Inc)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forParent shall cause the Surviving Corporation, and the Surviving Corporation hereby agrees, to do the following:
(a) All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, rights under employment agreements (to the extent related to indemnification or expense advancement or reimbursement), and rights to advancement of expenses relating thereto now existing in favor of any Person who is or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a present or former director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Person”) as provided in the certificate of incorporation of the Company, the bylaws of the Company, the organizational documents of any Subsidiary of the Company or any indemnification agreement, employment agreement (to the extent related to indemnification or expense advancement or reimbursement), or others agreement containing any indemnification provisions, including any employment agreements (to the extent related to indemnification or expense advancement or reimbursement), between such Indemnified Person and the Company or any of its Subsidiaries shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Person.
(b) For six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold ENBC harmless all Indemnified Persons to the fullest extent permitted by the DGCL and all ENBC any other Applicable Law in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Person is or was a director (including in a capacity as a member of any board committee), officer, employee or agent of the Company, any of its Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstor any of their respective predecessors or (ii) this Agreement or any of the Transactions, all expenseswhether in any case asserted or arising before, on or after the Effective Time, against any losses, claims, damages, liabilities, costs, deficiencies, liabilities and damages expenses (including related counsel fees) incurred or suffered by them resulting from: (a) any breach reasonable attorney’s fees and expenses in advance of the final disposition of any representation claim, suit, proceeding or warranty made investigation to each Indemnified Person to the fullest extent permitted by Applicable Law upon receipt of any undertaking required by Applicable Law), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. Neither Parent nor the Supplier Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or pursuant actual Claim for which indemnification could be sought by an Indemnified Person hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such Claim or such Indemnified Person otherwise consents in writing to this Agreement; (b) any default such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with an Indemnified Person in the performance defense of any of the covenants or agreements made by the Supplier in this Agreement; matter for which such Indemnified Person could seek indemnification hereunder.
(c) any claim Prior to the Effective Time, the Company shall, or action by any consumer or any other third party arising out if the Company is unable to, Parent shall cause the Surviving Corporation as of the production or sale Effective Time to, obtain the premium for the non-cancellable extension of the Products by directors’ and officers’ liability coverage of the Supplier Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six (including any claims or actions for personal injury 6) years from and any products liability claims or action), provided, however, that after the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee Effective Time with respect to any claim related to any period of time at or action prior to the extent such claim or action is attributable Effective Time (including claims with respect to the alteration, handling or misbranding adoption of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to this Agreement and the use by the Supplier consummation of the FormulationsTransactions) with terms, Procedures conditions, retentions and Specificationslimits of liability that are no less favorable than the coverage provided under the Company’s existing policies; or provided, that the Company shall give Parent a reasonable opportunity to participate in the selection of such “tail” insurance policy and the Company shall give good faith consideration to any comments made by Parent with respect thereto; and provided, that the premium payable for such “tail” insurance policy shall not exceed 300% of the amount per annum the Company paid in its last full fiscal year (such maximum amount, the “Maximum Tail Premium”) and if the cost for such “tail” insurance policy exceeds the Maximum Tail Premium, then the Company shall obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Tail Premium.
(d) If Parent or the Surviving Corporation (i) consolidates with or merges into any claim other Person and shall not be the continuing or action brought by surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys of its property and assets to any federalPerson, statethen, local and in each such case, proper provision shall be made so that the applicable successor, assign or foreign governmental agency transferee shall assume the obligations set forth in connection with this Section 7.02 (including this Section 7.02(d)).
(e) The rights of each Indemnified Person under this Section 7.02 shall be in addition to any rights such Person may have under the production or sale certificate of incorporation and bylaws of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC Company or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to of its Subsidiaries, under the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency DGCL or any other third partyApplicable Law, under any agreement of any Indemnified Person with the Company or any of its Subsidiaries or otherwise. These rights shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Person. The obligations of Parent and the Surviving Corporation under this Section 7.02 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Person without the consent of such Indemnified Person.
(f) Parent shall pay all reasonable expenses, including any claim of infringement or violation ofreasonable attorneys’ fees, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action that may be incurred by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to Indemnified Person in enforcing the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used indemnity and other obligations provided in accordance with ENBC's instructions pursuant to this Section 6.77.02.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 (a) The Supplier agrees Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation and Bylaws, respectively, of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, or employees, of the Company or any of the Company Subsidiaries. During the period ending on the sixth anniversary of the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent that the Company would have been permitted to do so under applicable Law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and former director and officer of the Company and each of the Company Subsidiaries (collectively, the "Indemnified Parties") against all ENBC Subsidiaries costs and ENBC Franchisees that purchase Products harmless from and againstexpenses (including reasonable attorneys' fees), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (including related counsel fees) incurred whether arising before or suffered by them resulting from: (a) any breach of any representation after the Effective Time), whether civil, criminal, administrative or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party investigative, arising out of the production or sale pertaining to any action or omission, in his or her capacity as an officer, director, or employee of the Products Company, occurring on or before the Effective Time (a "Covered Proceeding"). In the event of any such claim, action, suit, proceeding or investigation, Parent or the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Supplier Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received (including any claims or actions for personal injury and any products liability claims or actionprovided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification), ; provided, however, that neither Parent nor the Supplier Surviving Corporation shall have no obligation be liable for any settlement effected without Parent's or the Surviving Corporation's written consent (which consent shall not be unreasonably withheld or delayed); provided, further, that Parent and the Surviving Corporation shall not be required to indemnify ENBC agree to the entry of any judgment or settlement that provides for injunctive or other non-monetary relief affecting the Parent, the Surviving Corporation or any ENBC Subsidiary or ENBC Franchisee of their respective subsidiaries. Neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3(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 with respect to such Covered Proceeding unless there is, under applicable standards of professional conduct, a conflict on any claim significant issue between the positions of any two or action to more Indemnified Parties, in which case Parent shall pay the extent fees of such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use additional counsel required by the Supplier of the Formulations, Procedures and Specificationssuch conflict; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, howeverthat, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC that any claim for indemnification is asserted or any ENBC Subsidiary or ENBC Franchisee is obligated made within such six-year period, all rights to make indemnity payments indemnification in respect of such claim shall continue until the disposition of such claim. Any Indemnified Party that desires to claim indemnification under this Section 5.3(a) upon becoming aware of any such agreement resulting from any of Covered Proceeding shall promptly notify Parent and the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofSurviving Corporation.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Amcomp Inc /Fl)
Indemnification and Insurance. 11.1 The Supplier agrees Salix and Purchaser have agreed that all rights to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forindemnification by Santarus now existing in favor of each current or former officer or director of Santarus or its subsidiary (each an “Indemnified Party”) as provided in Santarus’ certificate of incorporation or bylaws, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstin each case as in effect on November 7, all expenses2013, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to any other agreements in effect on November 7, 2013, will be assumed by the Surviving Corporation at the Effective Time and will remain in full force and effect in accordance with their terms. For six years after the Effective Time, to the full extent permitted under applicable law, Salix and the Surviving Corporation (the “Indemnifying Parties”) will indemnify, defend and hold harmless each Indemnified Table of Contents Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in respect of the Merger Agreement), and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred (and advance reasonable legal or other expenses incurred by any Indemnified Party in connection with matters for which such Indemnified Party is eligible to be indemnified as described in this Agreementparagraph within 15 days after receipt by Salix of a written request for such advance, subject to the execution by such Indemnified Party of appropriate undertakings to repay such advanced costs and expenses if it is ultimately determined that such Indemnified Party is not entitled to indemnification). Salix will cause the Surviving Corporation to maintain Santarus’ officers’ and directors’ liability insurance policies in effect on November 7, 2013 (the “D&O Insurance”) for a period of not less than six years after the Effective Time, but only to the extent related to actions or omissions prior to the Effective Time. Notwithstanding the preceding sentence, the Surviving Corporation may substitute for such insurance policies, policies of at least the same coverage and amounts containing terms no less advantageous to such former directors or officers so long as such substitution does not result in gaps or lapses of coverage with respect to matters occurring prior to the Effective Time; (b) provided that in no event will Salix or the Surviving Corporation be required to pay annual premiums of more than an amount equal to 250% of the current annual premiums paid by Santarus for such insurance, and if the cost for such insurance coverage exceeds such maximum premium, Salix and the Surviving Corporation will procure and maintain for such six-year period as much coverage as reasonably practicable for the amount of such maximum premium. Salix will have the option to cause coverage to be extended under the D&O Insurance by obtaining a six-year “tail” policy or policies on terms and conditions no less advantageous than Santarus’ existing D&O Insurance, subject to the limitations set forth above in this paragraph. Stockholder Litigation. Santarus will promptly advise Salix in writing of any default in legal proceeding brought or threatened by any Santarus stockholder against Santarus or the performance of Santarus Board relating to the Merger Agreement or any of the covenants transactions contemplated by the Merger Agreement and the Support Agreement and will keep Salix reasonably informed on a prompt, routine basis regarding any such proceeding. Santarus will give Salix (i) the opportunity to consult with Santarus regarding the defense of any such proceeding, (ii) the right to review and comment on all material filings or agreements responses to be made by Santarus in connection with any such proceeding (and Santarus will give reasonable consideration to such comments) and (iii) the Supplier in this Agreement; (c) right to consult on any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee settlement with respect to any claim such proceeding (with no such settlement to be agreed to without Salix’s prior written consent (which consent will not be unreasonably withheld, conditioned or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of businessdelayed), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications).
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 (a) The Supplier agrees Certificate of Incorporation and By-Laws of the Company shall contain the provisions with respect to indemnification set forth in the Certificate of Incorporation and ByLaws of the Company on the date hereof, which provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights to indemnification thereunder of any current or future directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) The Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws as in effect on the Closing Date and regardless of whether the Closing occurs, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and all ENBC former director, officer or employee of the Company or any of its Subsidiaries and ENBC Franchisees that purchase Products harmless from and against(collectively, all expensesthe "Indemnified Parties") against any out of pocket costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages (including related counsel fees) amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative incurred or suffered by them resulting from: (a) any breach of any representation or warranty made such person by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any reason of the covenants fact that such person is or agreements made by the Supplier in this Agreement; was an Indemnified Party, (cx) any claim or action by any consumer or any other third party arising out of or pertaining to the production transactions contemplated by this Agreement and the other Transaction Documents or sale (y) otherwise with respect to any acts or omissions occurring on or prior to the Closing Date, to the same extent as provided in the Company's Certificate of Incorporation or By-Laws as in effect on the Products Closing Date or any applicable contract or agreement as in effect on the date hereof and identified in Schedule 3.18 hereto as containing an agreement concerning indemnification of any Indemnified Parties. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Closing Date), (i) any counsel retained by the Supplier Indemnified Parties for any period after the Closing Date shall be reasonably satisfactory to the Company, (including ii) after the Closing Date, the Company shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received, provided the Indemnified Parties first deliver to the Company a written undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified by the Company under this Section 6.12, and (iii) the Company will cooperate in the defense of any claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that the Supplier Company shall have no obligation not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). The Indemnified Parties as a group may retain (in addition to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLlocal
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Transmedia Network Inc /De/)
Indemnification and Insurance. 11.1 The Supplier agrees to Unless otherwise prohibited by law, the Corporation may indemnify ENBC any trustee or officer, any former trustee or officer, any person who may have served at its request as a trustee or officer of another corporation, whether for profit or not for profit, and may, by resolution of the Board of Trustees, indemnify any employee against any and all ENBC Subsidiaries expenses and ENBC Franchisees forliabilities actually and necessarily incurred by him or her, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees imposed on him or her in connection with any claim, action, suit, or proceeding (whether actual or threatened, civil, criminal, administrative, or investigative, including appeals) to which he or she may be or is made a party by reason of being or having been such trustee, officer, or employee; subject to the limitation, however, that purchase Products harmless from and againstthere shall be no indemnification in relation to matters as to which he or she shall be adjudged in such claim, all expensesaction, losses, costs, deficiencies, liabilities and suit or proceeding to be guilty of a criminal offense or liable to the Corporation for damages (including related counsel fees) incurred arising out of his or suffered by them resulting from: (a) any breach of any representation her own gross negligence or warranty made by the Supplier in or pursuant to this Agreement; (b) any default misconduct in the performance of a duty to the Corporation. Amounts paid in indemnification of expenses and liabilities may include, but shall not be limited to, counsel fees and other fees; costs and disbursements; and judgments, fines, and penalties against, and amounts paid in settlement by, such trustee, officer, or employee. The Corporation may advance expenses to, or where appropriate may itself, at its expense, undertake the defense of, any of the covenants trustee, officer, or agreements made by the Supplier in this Agreementemployee; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that such trustee, officer, or employee shall undertake to repay or to reimburse such expense if it should be ultimately determined that he or she is not entitled to indemnification under this Article. The provisions of this Article shall be applicable to claims, actions, suits or proceedings made or commenced after the Supplier adoption hereof, whether arising from acts or omissions to act occurring before or after adoption hereof. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which such trustee, officer, or employee may be entitled under any statute, Bylaw, agreement, vote of the Board of Trustees, or otherwise and shall not restrict the power of the Corporation to make any indemnification permitted by law. The Board of Trustees may authorize the purchase of insurance on behalf of any trustee, officer, employee, or other agent against any liability asserted against or incurred by him or her which arises out of such person's status as a trustee, officer, employee, or agent or out of acts taken in such capacity, whether or not the Corporation would have no obligation the power to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action person against that liability under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), providedlaw. In no case, however, that shall the Supplier shall have no obligation to indemnify ENBC Corporation indemnify, reimburse, or insure any ENBC Subsidiary or ENBC Franchisee with respect to person for any claim or action to the extent taxes imposed on such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier individual under chapter 42 of the FormulationsInternal Revenue Code of 1986, Procedures and Specifications.
11.2 ENBC agrees as now in effect or as may hereafter be amended (the “Code”). Further, if at any time the Corporation is deemed to indemnify be a private foundation within the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach meaning of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any § 509 of the covenants Code then, during such time, no payment shall be made under this Article if such payment would constitute an act of self-dealing or agreements made by ENBC a taxable expenditure, as defined in § 4941(d) or § 4945(d), respectively, of the Code. If any part of this Agreement; (c) Article shall be found in any claim or action by any consumeraction, governmental agency or any other third party, including any claim of infringement or violation ofsuit, or conflict withproceeding to be invalid or ineffective, any patent or trade secret of any third party, to the extent such claim or action is attributable to validity and the use by the Supplier effectiveness of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7remaining parts shall not be affected.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Charter School Renewal Agreement
Indemnification and Insurance. 11.1 The Supplier agrees (a) Without limiting any other rights that any Indemnified Person may have pursuant to indemnify ENBC any employment agreement or indemnification agreement in effect on the date hereof or otherwise, each of which has been provided or made available to Tellurian prior to the date hereof, from the Effective Time and all ENBC Subsidiaries until the six-year anniversary of the Effective Time, Magellan and ENBC Franchisees forthe Surviving Corporation shall, jointly and severally, indemnify, defend and hold ENBC and harmless each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director, officer or employee of Magellan or any of its Subsidiaries or who acts as a fiduciary under any Magellan Benefit Plan or any of its Subsidiaries (the “Indemnified Persons”) against all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstlosses, all expensesclaims, lossesdamages, costs, deficienciesfines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities and damages or judgments or amounts that are paid in settlement, of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved (including related counsel feesas a witness) incurred based, in whole or suffered by them resulting from: (a) any breach of any representation in part, on or warranty made by the Supplier arising, in whole or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising part, out of the production fact that such Person is or sale was a director, officer or employee of Magellan or any of its Subsidiaries, a fiduciary under any Magellan Benefit Plan or is or was serving at the Products request of Magellan or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, Magellan Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to, at or after the Supplier Effective Time and whether asserted or claimed prior to, at or after the Effective Time (including any claims or actions for personal injury and any products liability claims or action“Indemnified Liabilities”), providedincluding all Indemnified Liabilities based in whole or in part on, howeveror arising in whole or in part out of, that or pertaining to, this Agreement or the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action Merger, other than to the extent such claim indemnification relates to a breach of this Agreement by Magellan or action is attributable its Subsidiaries, in each case to the alterationfullest extent permitted under applicable Law (and Tellurian and the Surviving Corporation shall, handling or misbranding jointly and severally, pay expenses incurred in connection therewith in advance of Products after they have been delivered the final disposition of any such Proceeding to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable each Indemnified Person to the use by fullest extent permitted under applicable Law). Without limiting the Supplier of foregoing, in the Formulationsevent any such Proceeding is brought or threatened to be brought against any Indemnified Persons (whether arising before or after the Effective Time), Procedures and Specifications; (i) the Indemnified Persons may retain Magellan’s regularly engaged legal counsel or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating other counsel satisfactory to public health, the sale of food and drugsthem, and Tellurian and the safe conduct Surviving Corporation shall pay all reasonable fees and expenses of business), provided, however, that such counsel for the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier forIndemnified Persons as promptly as statements therefor are received, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel feesii) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (Tellurian and the right Surviving Corporation shall use its best efforts to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or action advancement of expenses under this Section 5.8, upon learning of any such Proceeding, shall notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any obligations that it may have under this Section 5.8 except to the extent such failure materially prejudices such party’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by Magellan or Surviving Corporation under this Section 5.8, such Indemnified Person shall have the right, as contemplated by the other party hereunderDGCL, to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by Tellurian or the Surviving Corporation, as applicable (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for Tellurian, Surviving Corporation or the Indemnified Person within the last three (3) years.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) Prior to or within 90 days following the Closing Date, Magellan shall purchase “run-off” director and officer indemnification insurance to insure the existing officers and directors of Magellan for a period of six (6) years following the Closing Date in substantially the event same amount as the Supplier is obligated to make indemnity payments under any such agreement resulting from any director and officer indemnification insurance policy in existence as of the matters described in clauses date of this Agreement.
(ac) through (d), inclusive, The provisions of this Section 11.2 hereof, ENBC shall indemnify 5.8 are intended to be for the Supplierbenefit of, and hold shall be enforceable by, the Supplier harmless from Parties and against, such payment in accordance with each Person entitled to indemnification or insurance coverage or expense advancement pursuant to this Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws5.8, and (b) policies of comprehensive general liability insurance covering the Supplier's premises its heirs and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLrepresentatives.
Appears in 1 contract
Indemnification and Insurance. 11.1 2.1 The Supplier agrees Company shall, to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forthe maximum extent permitted by law, indemnify, defend and hold ENBC harmless the LLCP Representative, LLCP and all ENBC Subsidiaries the employees, partners, principals, agents, attorneys, accountants, representatives and ENBC Franchisees that purchase Products harmless other Affiliates of LLCP (including, without limitation, LLCP, Inc.) (collectively, the "LLCP Parties"), from and againstagainst all costs, expenses, liabilities, claims, judgments, damages and losses, including, without limitation, all reasonable attorneys' fees and expenses and the cost of any investigation and preparation incurred in connection therewith, incurred in connection with any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (collectively, "Liabilities and Costs"), arising out of or in any way related to the fact that any LLCP Party is or was a director, officer, employee or other agent of the Company or any subsidiary of the Company, is or was serving as an observer of the Board, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise and, in connection with any LLCP Party serving as such director, officer, employee or other agent, provided that such LLCP Party acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company.
2.2 Upon request by any LLCP Party, the Company, shall advance (within five (5) Business Days of such request) any and all expenses, lossesincluding, costswithout limitation, deficiencies, liabilities any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all reasonable attorneys' fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier may be entitled to indemnification hereunder. The Company shall also indemnify each LLCP Party from and against any and all Liabilities and Costs incurred in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee connection with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought to enforce such LLCP Party's rights under this Section 2, or under Applicable Law or the Company's charter or bylaws now or hereafter in effect relating to indemnification, or for recovery under directors' and officers' liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If, for any reason, the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may otherwise have at law or under any other agreement, including, without limitation, the Securities Purchase Agreement, and such obligations shall extend, upon the same terms, to all LLCP Parties. This Section 2 shall survive indefinitely the termination of this Agreement.
2.3 At any time that an LLCP Representative is serving on the Board and continuing for as long as any claim may be required to enter into indemnity agreements with Authorized Recipients. ENBC made against the LLCP Representative during any applicable statute of limitations periods, the Company shall have in place and shall maintain in force and effect one or more directors and officers liability insurance policies providing at least $10,000,000 in insurance coverage for director liability, including coverage for claims under federal and state securities laws under terms and conditions generally included in such policies and so long as the Supplier agree that Company can obtain such a policy under commercially reasonable terms (a) in including the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (dpremium amount), inclusiveprovided, of Section 11.1 hereofthat if the Company is unable to obtain at least $10,000,000 in insurance coverage on commercially reasonable terms, the Supplier shall indemnify ENBC or it will obtain such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier lesser amount as is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofcommercially reasonable.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to 21.1. Physiometrix shall indemnify ENBC and hold harmless Xxxxxx, its officers, shareholders, directors and employees, agents, successors and assigns, against any and all ENBC Subsidiaries liability, damage, loss, cost or expense resulting from any third party claims made or suits brought due to or arising out of (i) manufacturing, design, material, functional defects or product label statements or representations occurring in Products sold to Xxxxxx, (ii) personal injury or property damage caused by the Products at any time (except to the extent covered by Xxxxxx'x indemnification obligations set forth in Section 22.2), or (iii) breach of a warranty, representation or obligation of Physiometrix in this Agreement. Xxxxxx shall promptly notify Physiometrix within ten (10) business days of receipt of written notice of any such third-party claims or suits, whereupon Physiometrix shall fully cooperate with Xxxxxx in the defense thereof and ENBC Franchisees forin any reasonable action Physiometrix deems appropriate in response to such claims or suits. Physiometrix, at its own expense, may at its election, through its own attorneys, participate in the defense of such claims or suits. At Xxxxxx'x option, Physiometrix shall also defend any such claims or suits in which event Xxxxxx shall fully cooperate with Physiometrix in defense thereof and in any reasonable action Physiometrix deems appropriate in response to such claims or suits and Xxxxxx, at its own expense, at its election, through its own attorneys, may participate in the defense of such claims or suits. Notwithstanding the foregoing, Physiometrix shall be entitled to assume the defense of any claims or suits involving the Licensed Trademarks or other intellectual property related to the Products.
21.2. Physiometrix shall, at its expense, indemnify, defend and hold ENBC Xxxxxx and all ENBC Subsidiaries its agents and ENBC Franchisees that purchase Products employees harmless from and againstagainst all costs and liabilities incurred in connection with any claim, all expensesaction, lossessuit or proceeding maintaining that any patent, costs, deficiencies, liabilities and damages (including related counsel fees) incurred trademark or suffered by them resulting from: (a) any breach other intellectual property rights of any representation third party are infringed or warranty made violated by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production import, distribution or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default PSA in the performance of any of the covenants or agreements made by ENBC Territory as provided in this Agreement; . Physiometrix may, with Xxxxxx'x agreement, (ci) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and obtain for Xxxxxx the right to establish continue to market, sell and distribute the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party relevant product in the defense of any claim Territory (a "Third Party License") or action by (ii) replace or modify the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated relevant product so as to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements product non-infringing. If (i) providing that and (ii) are not commercially and technically reasonable, or if Xxxxxx and Physiometrix cannot agree as described in this section 21.2, the Supplier's comprehensive general liability coverage (including parties may terminate the Agreement to distribute the relevant Product in the Territory, Physiometrix shall repurchase such Products and refund Xxxxxx'x purchase price, and Xxxxxx at Physiometrix' expense, will remove all such products liability) (from the "Supplier CGLTerritory and will cease distributing such product in the Territory.
Appears in 1 contract
Samples: Strategic Alliance and Exclusive Distribution Agreement (Physiometrix Inc)
Indemnification and Insurance. 11.1 The Supplier agrees (i). During the Employment Period and for so long thereafter as potential liability exists with regard to your activities during the Employment Period on behalf of the Company, its subsidiaries or affiliates, or as a fiduciary of any benefit plan of any of them, the Company shall indemnify ENBC you to the fullest extent permitted by applicable law (other than in connection with your gross negligence or willful misconduct), shall at the Company’s election provide you with legal representation or shall advance to you reasonable attorneys’ fees and all ENBC Subsidiaries and ENBC Franchisees forexpenses as incurred, and hold ENBC shall advance to you other reasonable expenses of response or defense as incurred (subject to an undertaking from you to repay such advances if it shall be finally determined by a judicial decision which is not subject to further appeal that you were not entitled to the reimbursement of such fees and expenses). If, during the Employment Period, Sabre, Sabre Holdings Corp. or Holdings enters into any standalone indemnification agreement with any member of the Board or the board of directors of Sabre or Sabre Holdings Corp., other than the Chairman of the Board, or any other executive officer of Sabre, Sabre Holdings Corp. or Holdings, Sabre, Sabre Holdings Corp. or Holdings shall promptly enter into substantially the same indemnification agreement with you.
(ii). During the Employment Period and for so long as potential liability exists thereafter you shall be entitled to the protection of all ENBC Subsidiaries insurance policies (if any) the Company shall elect to maintain generally for the benefit of its directors and ENBC Franchisees that purchase Products harmless from officers (“Directors and against, Officers Insurance”) against all expenses, losses, costs, deficiencies, liabilities charges and damages (including related counsel fees) expenses incurred or suffered sustained by them resulting from: you in connection with any action, suit or proceeding to which you may be made a party by reason of your being or having been a director, officer or employee of the Company or any of its subsidiaries or affiliates or your serving or having served any other enterprise or benefit plan as a director, officer, fiduciary or employee at the request of the Company (a) other than any breach of any representation dispute, claim or warranty made by the Supplier in controversy arising under or pursuant relating to this Agreement); provided, that you shall, in all cases, be entitled to Directors and Officers Insurance coverage no less favorable than that (bif any) provided to any default in the performance of any other present director or officer of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsCompany.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Employment Agreement (Sabre Corp)
Indemnification and Insurance. 11.1 The Supplier agrees to To the fullest extent permissible under Maryland law, the Company shall indemnify ENBC and hold harmless Executive for and against any and all ENBC Subsidiaries losses, expenses (including those incurred in enforcing Executive’s rights under this Section 10), damages, liabilities, judgments, fines, penalties, taxes, amounts paid or payable in settlement (including interest), assessments and ENBC Franchisees forall other charges paid or payable in connection with any threatened, pending or completed action, suit, proceeding or other dispute resolution mechanism, whether civil, criminal, administrative, arbitrative, investigative or other, or any inquiry, hearing or investigation that may reasonably be expected to lead to any of the foregoing, which Executive may incur or suffer or for which Executive may be liable by reason of or arising out of any event, act or occurrence relating to Executive’s employment HB: 0000-0000-0000.9 with the Company or any of its Affiliates or any other entity for which Executive provided services at the direction or request of the Company or any of its Affiliates (“Indemnified Losses”), and hold ENBC at Executive’s election, shall defend Executive in connection with any of the foregoing. The Company shall at all times maintain reasonable and customary policies of insurance by reputable insurers under which Executive is a primary beneficiary covering all ENBC Subsidiaries Indemnified Losses, and ENBC Franchisees that purchase Products harmless from shall, upon Executive’s written request, provide copies of such insurance policies and againstendorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, all expenses, losses, costs, deficiencies, liabilities when and damages (including related counsel fees) to the extent actually incurred or suffered by them resulting from: (a) Executive. In connection with any breach request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Company an undertaking to repay any representation amounts paid, advanced, or warranty made reimbursed by the Supplier in or pursuant Company for such Indemnified Losses to this Agreement; (b) any default in the performance extent that it is ultimately determined, following the final disposition of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, howeversuch claim, that the Supplier Executive is not entitled to indemnification hereunder. The foregoing indemnification, insurance and adverse obligations shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect not apply to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use brought by the Supplier of the Formulations, Procedures and Specifications; Company or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action its Affiliates to enforce its rights under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees (a) Parent and Merger Sub agree that all rights to indemnify ENBC advancement of expenses, indemnification and all ENBC Subsidiaries exculpation by the Company or any Company Subsidiary now existing in favor of each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company or any Company Subsidiary (each, together with such person's heirs, executors or administrators, an "Indemnified Party") as provided in the Company's or such Company Subsidiary's respective certificate of incorporation or bylaws, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date of this Agreement, shall survive the Merger from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs.
(b) Without limiting the foregoing, from and ENBC Franchisees forafter the Acceptance Time, each of Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent that the Surviving Corporation would be permitted to do so under applicable Law, indemnify, defend and hold ENBC harmless (and all ENBC Subsidiaries advance funds in respect of each of the foregoing, subject to the indemnifying or advancing party's receipt of an unsecured undertaking by or on behalf of the Indemnified Party to repay such funds if it is ultimately determined that such Indemnified Party is not entitled to indemnification hereunder) each Indemnified Party against any costs or expenses (including advancing reasonable attorneys' fees and ENBC Franchisees that purchase Products harmless from and againstexpenses in advance of the final disposition of any claim, all expensessuit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, investigative or otherwise (an "Action"), arising out of, relating to or in connection with any action or omission occurring or alleged to have occurred whether before or after the Acceptance Time in connection with such Indemnified Party serving as an officer or director of the Company or any of its Subsidiaries or any other Person if such service was at the request or for the benefit of the Company or any of its Subsidiaries.
(c) Parent shall cause the Surviving Corporation, as of the Effective Time, to cause the individuals who have served as officers and directors of the Company prior to the Effective Time who are then covered by the directors' and officers' liability insurance policy currently maintained by the Company (the "D&O Insurance"), to be covered under a prepaid directors' and officers' liability insurance policy on terms and conditions no less advantageous to such individuals than the Company's existing directors' and officers' liability insurance policy, for a period of not less than six (6) years after the Effective Time, but only to the extent related to actions or omissions of such officers and directors at or prior to the Effective Time (including related counsel feesin respect of this Agreement and the Transactions) incurred in their capacities as such, whether asserted or suffered by them resulting from: (a) any breach claimed prior to, at or after the Effective Time; provided, that in no event shall the Surviving Corporation be required to expend more than an amount per year equal to 250% of any representation or warranty made current annual premiums paid by the Supplier in Company for such insurance (the "Maximum Amount") to maintain or procure insurance coverage pursuant to this Agreementhereto; (b) any default in provided, further, that if the performance of any amount of the covenants annual premiums necessary to maintain or agreements made procure such insurance coverage exceeds the Maximum Amount, the Surviving Corporation shall procure and maintain for such six-year (6) period as much coverage as is available for the Maximum Amount. Parent shall have the right to cause coverage to be extended under the D&O Insurance by causing the Supplier Surviving Corporation to obtain a six (6) year "tail" policy on terms and conditions no less advantageous to such former directors or officers than the D&O Insurance, and such "tail" policy shall satisfy the provisions of this Section 6.9(b). Notwithstanding anything to the contrary in this Agreement; (c, the Company may, prior to the Effective Time, purchase a so-called "Reporting Tail Endorsement," provided that the Company does not pay more than the amount set forth on Section 6.9(c) any claim or action by any consumer or any other third party arising out of the production or sale of Company Disclosure Letter for such Reporting Tail Endorsement, in which case, provided that Parent causes the Products by the Supplier (including any claims or actions Surviving Corporation to maintain such Reporting Tail Endorsement in full force and effect for personal injury and any products liability claims or actionits full term, Parent shall be relieved from its other obligations under this Section 6.9(c), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or .
(d) any claim If Parent or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC Surviving Corporation or any ENBC Subsidiary of their respective successors or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing 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 Supplier's comprehensive general liability coverage successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.9.
(including products liabilitye) The obligations of Parent and the Surviving Corporation under this Section 6.9 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 6.9 applies without the written consent of such affected Indemnified Party (it being expressly agreed that the "Supplier CGLIndemnified Parties to whom this
Appears in 1 contract
Samples: Merger Agreement (Sepracor Inc /De/)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC From and all ENBC Subsidiaries and ENBC Franchisees forafter the Effective Time,
(a) Parent shall cause the Surviving Corporation to, and the Surviving Corporation shall, include as part of its Certificate of Incorporation and Bylaws provisions relating to the indemnification of all current and former directors, officers, employees and agents of the Company which are no less favorable than the provisions contained in the Company's Certificate of Incorporation and Bylaws. Such provisions shall not be amended, repealed or otherwise modified after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at any time prior to the Effective Time were directors, officers, employees or agents of the 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) 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 ENBC harmless and all ENBC Subsidiaries after the Effective Time, Parent and ENBC Franchisees that purchase Products harmless from the Surviving Corporation shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or Bylaws, indemnify and againsthold harmless, all expenseseach present and former director, officer or employee of the Company or any of its subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (including related counsel feesx) incurred arising out of or suffered pertaining to the transactions contemplated by them resulting from: this Agreement or (ay) otherwise with respect to any act or omissions occurring at or prior to the Effective 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 breach counsel retained by the Indemnified Parties for any period after the Effective Time shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation 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 representation or warranty made by such matter; provided, however, the Supplier in or pursuant to this AgreementSurviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); (b) any default and provided, further, that, in the performance 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. The Indemnified Parties as a group may retain only one law firm 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 covenants positions of any two or agreements made by the Supplier more Indemnified Parties in which case this Agreement; limitation shall not apply.
(c) any claim or action For a period of six years after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect directors' and officers' liability insurance covering those persons who are currently covered by any consumer or any other third party arising out the Company's directors' and officers' insurance policy on terms no less favorable than those now applicable to directors and officers of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), Company; provided, however, that Parent and the Supplier Surviving Corporation may substitute therefor policies of insurance containing terms and conditions that are no less advantageous to such covered persons or provide for such coverage under Parent's directors' and officers' liability insurance policy (a copy of which has been made available to the Company) if Parent's policy provides, subject to the last sentence of this Section 6.17(c), at least the same coverage and amounts and on terms and conditions that are no less favorable to covered persons than the Company's current policy. Notwithstanding the foregoing, neither Parent nor the Surviving Corporation shall have no obligation be required to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action maintain such policies to the extent such claim or action is attributable to the alteration, handling or misbranding premium therefore exceeds 200% of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use annual premiums currently paid by the Supplier Company in respect of the Formulations, Procedures and Specifications; current policy or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLMaximum Amount") but in such case shall purchase as much comparable coverage as available for the Maximum Amount.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, to indemnify ENBC the fullest extent permitted by applicable Law, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under (i) the memorandum and articles of association (or similar organizational documents) of the Company and its Subsidiaries in effect as of the date of this Agreement with respect to exculpation from liability, indemnification and advancement and reimbursement of expenses and (ii) any and all ENBC indemnification agreements identified on Section 5.06 of the Company Disclosure Letter between the Company or any of its Subsidiaries and ENBC Franchisees forany of their respective present or former directors, officers and employees (and any person who becomes a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time). For a period of six years from and after the Effective Time, Parent shall cause the Surviving Company to (A) to the fullest extent permitted by applicable Law, indemnify and hold ENBC harmless each current and former director, officer or employee of the Company or any of its Subsidiaries (and any person who becomes a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time) and each individual who serves or served at the request of the Company or any of its Subsidiaries as a Representative of another Person (including any employee benefit plan) (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstclaims, all expensesliabilities, losses, costsdamages, deficienciesjudgments, liabilities and damages fines, penalties, costs (including related counsel feesamounts incurred by such Indemnitee in settlement or compromise) incurred and expenses (including reasonable fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative or suffered investigative), whenever asserted, based on or arising out of, in whole or in part, (1) the fact that an Indemnitee is or was a director, officer or employee of the Company or such Subsidiary or serves or has served at the request of the Company or such Subsidiary as a Representative of another Person (including any employee benefit plan) or (2) acts or omissions by them resulting from: an Indemnitee in the Indemnitee’s capacity as a director, officer or employee of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (aincluding in connection with serving at the request of the Company or such Subsidiary as a Representative of another Person (including any employee benefit plan)), in each case under clause (1) or (2), at, or at any breach 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, advancement or reimbursement right of any representation Indemnitee)and (B) assume (in the case of the Surviving Company, in the Merger without any further action) all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification, advancement and reimbursement of expenses and exculpation from liabilities for acts or warranty made omissions occurring at or prior to the Effective Time as provided in the Company Charter and the organizational documents of such Subsidiaries as in effect on the date of this Agreement. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, unless otherwise required by Law, memorandum and articles of association (or similar organizational documents) of the Supplier Surviving Company to contain provisions no less favorable to the Indemnitees with respect to exculpation from liability, indemnification and advancement and reimbursement of expenses of directors, officers and employees and indemnification than are set forth as of the date of this Agreement in the Company Charter, 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, Parent shall cause the Surviving Company to pay, promptly after receipt by Parent or the Surviving Company of a written request by an Indemnitee if delivered prior to the sixth anniversary of the Effective Time, all reasonable and documented liabilities, losses, costs and expenses of such Indemnitee in connection with matters for which such Indemnitee is eligible to be indemnified pursuant to this Agreement; Section 5.06(a) in advance of the final disposition of such matter (including any Action in connection with enforcing the indemnity and other obligations referred to in this Section 5.06), subject to receipt of an undertaking to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Indemnitee is not entitled to indemnification under this Section 5.06(a).
(b) any default in None of Parent or the performance Surviving Company shall settle, compromise or consent to the entry of any of the covenants judgment in any threatened or agreements made by the Supplier in this Agreement; (c) any actual litigation, claim or action proceeding relating to any acts or omissions covered under this Section 5.06 (each, a “Claim”) for which indemnification could be sought by any consumer an Indemnitee hereunder, unless such settlement, compromise or any other third party consent includes an unconditional release of such Indemnitee from all liability arising out of the production such Claim or sale such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthParent, the sale of food and drugs, Surviving Company and the safe conduct of business), provided, however, that the Supplier Indemnitees shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim Claim and shall provide access to properties and individuals as reasonably requested and furnish or action by the other party hereundercause 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.
11.4 ENBC and (c) For the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on six-year period commencing immediately after the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereofEffective Time, the Supplier Surviving Company shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, (and hold ENBC Parent shall cause the Surviving Company to) maintain in effect the Company’s current directors’ and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general officers’ liability insurance covering acts or omissions occurring at or prior to the Supplier's premises Effective Time with respect to those individuals who are currently (and operationsany additional individuals who prior to the Effective Time become) covered by the Company’s directors’ and officers’ liability insurance policies on terms and scope with respect to such coverage, and in amount, no less favorable in the aggregate to such individuals than those of such policy in effect on the date of this Agreement (or the Surviving Company may substitute therefor policies of at least the same aggregate coverage with respect to matters existing or occurring prior to the Effective Time, including premises a “tail” policy, if the cost of such “tail” policy does not exceed the Maximum Premium). In lieu of maintaining such current policies, the Company may (or if requested by Parent, the Company shall use reasonably best efforts to), in consultation with Parent, purchase a six-year prepaid “tail” policy on terms and operations coverageconditions providing at least substantially equivalent benefits in the aggregate as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements covering without limitation the Transactions. The Surviving Company will not be obligated to (i) providing pay annual premiums for the “tail” policy in excess of 300% of the amount paid by the Company for coverage for the calendar year ended December 31, 2023 (such 300% amount, the “Maximum Premium”) or (ii) pay an aggregate cost for the “tail” policy in excess of the Maximum Premium. If the annual premiums of such insurance coverage for the six-year period exceed the Maximum Premium or the aggregate cost for such “tail” policy exceeds the Maximum Premium, as applicable, then the Surviving Company shall be obligated to obtain a policy with the greatest coverage available for an annual premium not exceeding the Maximum Premium or an aggregate cost for such “tail” policy not exceeding the Maximum Premium. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 5.06(c) and the Surviving Company shall cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(d) 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, reimbursement or contribution that any such individual may have under the Company Charter, by contract or otherwise. The obligations of Parent and the Surviving Company 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 (A) such termination or modification is required by applicable Law or (B) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Supplier's comprehensive general liability coverage Indemnitees to whom this Section 5.06 applies shall be third party beneficiaries of this Section 5.06).
(including products liabilitye) In the event that (i) Parent, the "Supplier CGLSurviving Company or any of their respective successors or assigns (A) consolidates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation or merger or (B) transfers or conveys all or substantially all of its properties and assets to any Person, or (ii) Parent or any of its successors or assigns dissolves the Surviving Company, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 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 the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.06 is not prior to or in substitution for any such claims under such policies.
(g) Parent’s and the Surviving Company’s obligations under this Section 5.06 shall continue in full force and effect for a period of six years from the Effective Time; provided, that if any Claim (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.06 shall continue in effect until the full and final resolution of such Claim.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier 9.1 LICENSEE agrees to hold harmless and indemnify ENBC BOARD, SYSTEM, UTMDACC, their Regents, officers, employees, students and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless agents from and againstagainst any claims, all expensesdemands, or causes of action whatsoever, costs of suit and reasonable attorney’s fees, including without limitation, those costs arising on account of any injury or death of persons or damage to property caused by, or arising out of, or resulting from, the exercise or practice of the rights granted hereunder by LICENSEE, its officers, its AFFILIATES or their officers, employees, agents or representatives.
9.2 In no event shall BOARD, SYSTEM or UTMDACC be liable for any indirect, special, consequential or punitive damages (including, without limitation, damages for loss of profits or expected savings or other economic losses, costsor for injury to persons or property) arising out of, deficienciesor in connection with, liabilities and damages this AGREEMENT or its subject matter, regardless of whether BOARD, SYSTEM or UTMDACC knows or should know of the possibility of such damages.
9.3 Beginning at the time when any LICENSED SUBJECT MATTER is being distributed or sold (including related counsel feesfor the purpose of obtaining regulatory approvals) incurred by LICENSEE, an AFFILIATE, or suffered by them resulting froma SUBLICENSEE, LICENSEE shall, at its sole cost and expense, procure and maintain commercial general liability insurance in amounts not less than [*] and LICENSEE shall use reasonable efforts to have the BOARD, SYSTEM, UTMDACC, their Regents, officers, employees, students and agents named as additional insureds. Such commercial general liability insurance shall provide: (ai) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreementproduct liability coverage; (bii) any default in broad [*] Certain information on this page has been omitted and filed separately with the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee Commission. Confidential treatment has been requested with respect to any claim or action the omitted portions. form contractual liability coverage for LICENSEE’s indemnification under this AGREEMENT; and (iii) coverage for litigation costs. The minimum amounts of insurance coverage required herein shall not be construed to the extent such claim or action is attributable to the alteration, handling or misbranding create a limit of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee LICENSEE’S liability with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationsits indemnification under this AGREEMENT.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance 9.4 LICENSEE shall provide UTMDACC with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel written evidence of such party's selectioninsurance within thirty (30) calendar days of its procurement. Additionally, that each party will promptly give the other party LICENSEE shall provide UTMDACC with written notice of any claim at least fifteen (15) calendar days prior to the cancellation, non-renewal or action of which it becomes aware that could result material change in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderinsurance.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any 9.5 LICENSEE shall maintain such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive commercial general liability insurance covering beyond the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit expiration or termination of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLthis AGREEMENT during: [*].
Appears in 1 contract
Samples: Patent and Technology License Agreement (Introgen Therapeutics Inc)
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, to the fullest extent permitted under applicable Laws, Parent and the Surviving Entity jointly and severally agree to (i) indemnify ENBC and hold harmless against any reasonable costs or expenses (including reasonable attorneys’ fees and all ENBC Subsidiaries other reasonable costs, expenses and ENBC Franchisees forobligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and hold ENBC binding costs, as well as telecommunications, postage and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstcourier charges) paid or incurred in connection with investigating, all expensesdefending, 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, costsclaims, deficienciesdamages or liabilities, liabilities penalties and damages amounts paid in settlement (including related counsel fees) incurred all interest, assessments and other charges paid or suffered by them resulting from: (a) any breach payable in connection with or in respect of any representation thereof) in connection with any actual or warranty made threatened Proceeding, and, upon receipt by Parent of an undertaking by or on behalf of the Supplier 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, provide advancement of expenses with respect to each of the foregoing to, all Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the Organizational Documents of the Partnership and the General Partner immediately prior to the Effective Time, and ensure that the Organizational Documents of the Partnership and the General Partner or any of their respective successors or assigns, if applicable, shall, for a period of six years following the 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 Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Agreement; Section 6.7(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and representatives against Parent and the General Partner and their respective successors and assigns.
(b) any default For a period of six years following the Effective Time, Parent shall maintain in effect Parent’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the performance Effective Time with respect to Indemnified Persons (provided, that Parent may substitute therefor policies with reputable carriers of any of at least the covenants or agreements made by same coverage containing terms and conditions that are no less favorable to the Supplier in this AgreementIndemnified Persons); (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that in no event shall Parent be required to expend pursuant to this Section 6.7(b) more than an amount per year equal to 300% of current annual premiums paid by Parent for such insurance (the Supplier “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, Parent would be required to expend more than the Maximum Amount, Parent shall have 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 6.7(b), Parent may (but shall be under no obligation to), prior to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee the Effective Time, purchase a “tail policy” with respect to any claim acts or action omissions occurring or alleged to have occurred prior to the extent such claim Effective Time that were committed or action is attributable alleged to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use committed by the Supplier of the Formulations, Procedures and Specificationssuch Indemnified Persons in their capacity as such; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that in no event shall the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to cost of such policy exceed the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsMaximum Amount.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) The rights of any claim Indemnified Person under this Section 6.7 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of the Partnership and the General Partner, any indemnification agreements, or action the DLLCA and DRULPA. The provisions of this Section 6.7 shall survive the consummation of the transactions contemplated by any consumerthis Agreement and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and representatives. If Parent and/or the General Partner, governmental agency or any of their respective successors or assigns (i) consolidates with or merges into any other third party, including any claim of infringement or violation ofPerson, or conflict with(ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, any patent or trade secret of any third partythen, in each such case, to the extent such claim or action is attributable to necessary, a proper provision shall be made so that the use by successors and assigns of Parent and/or the Supplier General Partner shall assume the obligations of Parent and the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used General Partner set forth in accordance with ENBC's instructions pursuant to this Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Ugi Corp /Pa/)
Indemnification and Insurance. 11.1 The Supplier agrees (a) Immediately after the Effective Time, the certificate of incorporation and by-laws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification that are at least as favorable to the present and former officers and directors of Xxxxxx and its Subsidiaries (each an “Indemnified Party”) as those contained in the Xxxxxx Charter and the Xxxxxx By-laws as 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, immediately prior to the Effective Time, were directors, officers, employees or agents of Xxxxxx, unless such modification is required by law. ADC shall cause the Surviving Corporation to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and harmless each Indemnified Party against all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expensesclaims, losses, costsliabilities, deficienciesdamages, liabilities judgments, inquiries, fines and damages (reasonable fees, costs and expenses, including related counsel fees) attorneys’ fees and disbursements incurred in connection with any claim, action, suit, proceeding or suffered by them resulting from: (a) any breach of any representation investigation, whether civil, criminal, administrative or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party investigative, arising out of actions taken by them in their capacity as officers or directors at or prior to the production Effective Time (including in connection with this Agreement and the transactions contemplated hereby), or sale taken by them at the request of Xxxxxx, ADC, the Surviving Corporation or any of their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under Applicable Law for a period of six years after the Effective Time. Each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation within ten Business Days of receipt of the Products by Surviving Corporation from the Supplier (including any claims or actions for personal injury and any products liability claims or action), Indemnified Party of a 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 ADC nor the Supplier Surviving Corporation shall have no obligation to indemnify ENBC settle, compromise or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action consent to the extent entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim in which indemnification could be sought by such claim Indemnified Party hereunder, without the consent of such Indemnified Party, which consent shall not be unreasonably withheld, conditioned or action is attributable delayed, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim.
(b) Prior to the alterationEffective Time, handling or misbranding ADC shall purchase a directors’ and officers’ and fiduciary liability insurance policy providing coverage for a period of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable at least six years following the Effective Time (i) for persons who were officers and/or directors of Xxxxxx xxxxx to the use by Effective Time and (ii) for persons who were officers and/or directors of ADC prior to the Supplier Effective Time and who are not officers or directors of ADC immediately following the FormulationsEffective Time, Procedures and Specifications; in each case for claims arising after the Effective Time from facts or (d) any claim events which occurred at or action brought by any federal, state, local or foreign governmental agency in connection with prior to the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugsEffective Time, and in each case, which policy shall provide for at least the safe conduct same coverage and amounts containing terms and conditions that are not less advantageous than the respective policies of business)ADC and Xxxxxx, as in place at the Effective Time; provided, however, that in no event will ADC be required to expend in any year an amount in excess of 250% of the Supplier shall have no obligation annual aggregate premiums currently paid by ADC or Xxxxxx, as applicable, for 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, ADC will cause to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action be maintained the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsMaximum Premium.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency In the event that ADC or any of its successors or assigns (i) consolidates with or merges into any other third partyPerson 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, including any claim then, and in each such case, proper provision will be made so that the successors and assigns of infringement or violation of, or conflict with, any patent or trade secret of any third party, to ADC assume the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or obligations set forth in this Section 6.4.
(d) any claim or action by any third party alleging infringement or violation The provisions of this Section 6.4 are intended for the benefit of, and will be enforceable by, each Indemnified Party and his or conflict withher heirs and representatives, and are in addition to, and not in substitution for, any trademarks, trade names other rights to indemnification or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree contribution that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC Indemnified Party may have had by contract or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofotherwise.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) From and all ENBC Subsidiaries after the Effective Time, the Surviving Corporation shall (and ENBC Franchisees forParent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to, the 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 required by any of: (i) the Company Charter Documents as in effect on the date of this Agreement; and (ii) any applicable contract as in effect on the date of this Agreement and disclosed in the Company Disclosure Schedule.
(b) Without limiting the provisions of Section 5.8(a), during the period commencing with the Closing and ending on the sixth anniversary of the Effective Time, Parent shall, to the fullest extent permitted by Law: (i) indemnify and hold ENBC harmless each Indemnitee against and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstany costs or expenses (including reasonable fees of counsel of nationally recognized reputation), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to any action or omission or alleged action or omission in such Indemnitee’s capacity as a director or officer of the Company or any of its Subsidiaries prior to the Effective Time, including in connection with the Transactions; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the reasonable expenses (including related reasonable fees of counsel feesof nationally recognized reputation) incurred or suffered by them resulting from: (a) any breach of any representation Indemnitee upon receipt of an undertaking by or warranty made by on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified (if receipt of such an undertaking is required under applicable Law). Parent and the Supplier in or pursuant to this Agreement; (b) any default Surviving Corporation shall be entitled, but not obligated to, participate in the performance defense and settlement of any of the covenants or agreements made by the Supplier in this Agreementsuch matter; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that Parent and the Supplier Surviving Corporation shall have no obligation not be liable for any settlement agreed to indemnify ENBC or effected without Parent’s and the Surviving Corporation’s written consent (which consent shall not be unreasonably withheld or delayed) upon reasonable prior notice and an opportunity to participate in the discussions concerning such settlement; and provided, further, that Parent and the Surviving Corporation shall not be obligated pursuant to this Section 5.8 to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnitees) for all Indemnitees in any ENBC Subsidiary or ENBC Franchisee jurisdiction with respect to any claim or single action except to the extent that two or more of such claim or action is attributable Indemnitees shall have an actual conflict of interest in such action. Notwithstanding anything to the alterationcontrary contained in this Section 5.8(b) or elsewhere in this Agreement, handling Parent shall not settle or misbranding of Products after they have been delivered to ENBC compromise or any ENBC Subsidiary or ENBC Franchisee or is attributable consent to the use by 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 Section 5.8(b) unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnitees from all liability arising out of such claim, action, suit, proceeding or investigation.
(c) Parent will provide, or cause the Supplier Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Indemnitees who are insured under the Company’s existing directors’ and officers’ insurance and indemnification policy identified in Section 5.8(c) of the FormulationsCompany Schedule (the “Existing D&O 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 D&O Policy or, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthif substantially equivalent insurance coverage is unavailable, the sale of food and drugs, and the safe conduct of business), best available coverage; provided, however, that the Supplier shall have no (i) Parent’s obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to maintain the extent D&O Insurance will be deemed fully satisfied if the Existing D&O Policy remains in full force and effect throughout such claim or action is attributable to the alterationsix-year period, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (aii) in the event ENBC that, for any reason, the Existing D&O Policy does not remain in effect throughout such six-year period, Parent and the Surviving Corporation shall not be required to pay an aggregate amount of premiums for replacement D&O Insurance for such six-year period in excess of the amount set forth in Section 5.8(c) of the Company Schedule (the “Cap Amount”); and (iii) if the aggregate amount of premiums of such replacement D&O Insurance for such six-year period exceed the Cap Amount, Parent or any ENBC Subsidiary or ENBC Franchisee is the Surviving Corporation shall be obligated to make indemnity payments under any such agreement resulting from any of obtain a policy with the matters described in clauses (a) through greatest coverage available for an aggregate cost not exceeding the Cap Amount.
(d)) The Indemnitees to whom this Section 5.8 applies shall be third party beneficiaries of this Section 5.8. The provisions of this Section 5.8 are intended to be for the benefit of each Indemnitee, inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, his heirs and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofhis representatives.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Bravo Holdco)
Indemnification and Insurance. 11.1 (a) The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forBy-Laws of the Surviving Corporation shall honor, and Parent shall cause the Surviving Corporation to honor, the provisions with respect to indemnification set forth in the By-Laws of the Company immediately prior to the Effective Time, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required by law.
(b) Without limiting the scope of Section 5.9(a), the Company shall, to the fullest extent permitted under applicable law or under the Company's Certificate of Incorporation or By-Laws or any applicable indemnification agreement and regardless of whether the Merger becomes effective, indemnify, defend and hold ENBC harmless, and, after the Effective Time, Parent shall and all ENBC Subsidiaries shall cause the Surviving Corporation to, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-Laws or any applicable indemnification agreement, indemnify, defend and ENBC Franchisees that purchase Products harmless from hold harmless, each present and againstformer director, all expensesofficer or employee of the Company (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (including related counsel feesi) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of or pertaining to the production transactions contemplated by this Agreement or sale of (ii) otherwise with respect to any acts or omissions occurring at or prior to the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), Effective Time; provided, however, that in connection with criminal acts the Supplier indemnification provided by this Section 5.9 shall have only apply provided the Indemnified Party had no obligation reasonable cause to indemnify ENBC believe that his/her conduct was criminal.
(c) Parent shall and shall cause the Surviving Corporation to honor and fulfill in all respects the obligations of the Company pursuant to indemnification agreements with the Company's directors, officers and employees existing at or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action before the Effective Time and to the extent such claim or action is attributable Indemnified Parties are insured pursuant to the alteration, handling terms of a directors and officers liability policy at or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable immediately prior to the use by the Supplier effective time, Parent and Surviving Corporation shall keep such policy in force for a period of the Formulations, Procedures and Specifications; not less than six years or purchase a "tail" which provides coverage for such period.
(d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with This Section shall survive the production or sale consummation of the Products Merger, is intended to benefit the Company, the Surviving Corporation and the Indemnified Parties, shall be binding on all successors and assigns of Parent and the Surviving Corporation and shall be enforceable by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsIndemnified Parties.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 The Supplier agrees (a) Parent and Merger Sub agree that all rights to indemnify ENBC advancement of expenses, indemnification and all ENBC Subsidiaries exculpation by the Company now existing in favor of each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company (each, together with such person’s heirs, executors or administrators, an “Indemnified Party”) as provided in the Company’s certificate of incorporation or bylaws, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date of this Agreement which have been provided to Parent prior to the date hereof, shall survive the Merger from the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs.
(b) From and ENBC Franchisees forafter the Acceptance Time, each of Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent permitted under applicable Law, indemnify, defend and hold harmless (and advance funds in respect of each of the foregoing, subject to the indemnifying or advancing party’s receipt of an unsecured undertaking by or on behalf of the Indemnified Party to repay such funds if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification hereunder) each Indemnified Party against any costs or expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (an “Action”), arising out of, relating to or in connection with any Action or omission occurring or alleged to have occurred whether before or after the Acceptance Time in connection with such Indemnified Party serving as an officer or director of the Company or any entity if such service was at the request or for the benefit of the Company.
(c) Parent shall cause the Surviving Corporation, as of the Effective Time, to cause the individuals who have served as officers and directors of the Company prior to the Effective Time who are then covered by the directors’ and officers’ liability insurance policy currently maintained by the Company (the “D&O Insurance”), to be covered under a prepaid directors’ and officers’ liability insurance policy on terms and conditions no less advantageous to such individuals than the Company’s existing directors’ and officers’ liability insurance policy, for a period of not less than six (6) years after the Effective Time, but only to the extent related to actions or omissions of such officers and directors at or prior to the Effective Time (including in respect of this Agreement and the Transactions) in their capacities as such, whether asserted or claimed prior to, at or after the Effective Time; provided, that in no event shall the Surviving Corporation be required to expend more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Surviving Corporation shall procure and maintain for such six-year (6) period as much coverage as is available for the Maximum Amount. Parent shall have the right to cause coverage to be extended under the D&O Insurance by causing the Surviving Corporation to obtain a six (6) year “tail” policy on terms and conditions no less advantageous to such former directors or officers than the D&O Insurance, and hold ENBC such “tail” policy shall satisfy the provisions of this Section 6.9(c). Notwithstanding anything to the contrary in this Agreement, the Company may, prior to the Effective Time, purchase a so-called “Reporting Tail Endorsement,” provided that the Company does not pay more than the amount set forth in Section 6.9(c) of the Company Disclosure Letter for such Reporting Tail Endorsement, in which case, provided that Parent causes the Surviving Corporation to maintain such Reporting Tail Endorsement in full force and effect for its full term, Parent shall be relieved from its obligations under this Section 6.9(c).
(d) If 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 ENBC Subsidiaries or substantially all of its properties and ENBC Franchisees assets to any Person, then, and in each such case, proper provision shall be made so that purchase Products harmless from the successors and againstassigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.9.
(e) The obligations of Parent and the Surviving Corporation under this Section 6.9 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 6.9 applies without the written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9, each of whom may enforce the provisions of this Section 6.9). Parent shall pay all expenses, lossesincluding reasonable attorneys’ fees, costs, deficiencies, liabilities and damages (including related counsel fees) that may be incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency Indemnified Party in connection with their enforcement of their rights provided in this Section 6.9; provided that such Indemnified Party prevails in such enforcement action.
(f) The provisions of this Section 6.9 are intended to be in addition to the production or sale rights otherwise available to the current and former officers and directors of the Products Company by the Supplier (including without limitation any claim law, charter, statute, bylaw or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationsagreement.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees Company shall, to the maximum extent permitted by Applicable Laws, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless the LLCP Representative, each LLCP representative on the Operating Committee, LLCP and LLCP's employees, general and limited partners, principals, agents, attorneys, accountants, representatives and Affiliates (collectively, the "LLCP Parties") from all ENBC Subsidiaries costs, expenses, liabilities, claims, damages and ENBC Franchisees losses, including without limitation, attorneys' fees and the cost of any investigation and preparation incurred in connection therewith (collectively, "Liabilities and Costs"), arising out of or in any way related to the fact that purchase Products harmless from any LLCP Party is or was a director or other agent of the Company or any Subsidiary of the Company, served on the Operating Committee or, while a director or other agent, is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise. Upon request by any LLCP Party, the Company shall advance (within ten (10) Business Days of such request) any and against, all expenses, lossesincluding, costswithout limitation, deficiencies, liabilities any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all attorneys' fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier in or pursuant may be entitled to this Agreementindemnification hereunder; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, howeverthat, if and to the extent that the Supplier shall have no obligation a court of competent jurisdiction finally determines that such LLCP Party is not permitted to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be indemnified with respect to such matter under Applicable Laws, the Company shall be entitled to reimbursement of any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or expenses so advanced. The Company shall also indemnify each LLCP Party from and against any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party's rights under this Section 1.6, or under Applicable Laws or the Company's Articles of Incorporation or Bylaws now or hereafter in effect relating to indemnification, or for recovery under directors' and officers' liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If for any reason the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC otherwise have at law or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d)other agreement, inclusive, of Section 11.1 hereofincluding without limitation, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee forSecurities Purchase Agreement, and hold ENBC such obligations shall extend, upon the same terms, to all LLCP Parties. This Section 1.6 shall survive indefinitely the termination of this Agreement. At any time that an LLCP Representative is serving on the Board of Directors, the Company shall maintain in force and such ENBC Subsidiary effect one or ENBC Franchisee harmless from more insurance policies providing at least $10,000,000 in insurance coverage for director liability, including coverage for claims under federal and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 state securities laws. The Supplier Company represents and warrants to LLCP that it carries: (a) currently maintains in effect one or more insurance policies of worker's compensation providing at least $10,000,000 in insurance coverage for director liability, including, without limitation, coverage for claims arising under federal and employer's liability insurance that comply with all state and federal securities laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL.
Appears in 1 contract
Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)
Indemnification and Insurance. 11.1 The Supplier agrees to 10.1 Amarin shall indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC Lilly, its officers, directors, employees and all ENBC Subsidiaries and ENBC Franchisees that purchase Products agents harmless from and againstagainst any and all liabilities, all expensesclaims, suits, damages, losses, costs, deficiencies, liabilities and damages costs or expenses (including related counsel reasonable attorneys' fees) (collectively "Claims") incurred by or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury rendered against Lilly, its officers, directors, employees and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action agents to the extent such claim Claims are caused by (or action is attributable are alleged to the alteration, handling or misbranding of Products after they have been delivered to ENBC caused by) Amarin's: (i) negligence, gross negligence, recklessness or willful misconduct, (ii) manufacturing, packaging, testing, use, labeling, storage, handling, promotion, distribution and sale of Permax, (iii) breach of any ENBC Subsidiary representations, warranty, or ENBC Franchisee or is attributable to the use by the Supplier of the Formulationscovenant under this Agreement, Procedures and Specifications; or (div) any claim or action brought by any federal, state, local or foreign governmental agency actions in connection with any aspect of Amarin's marketing activity for Permax(R) (including activity with any third party) (collectively, "Amarin Activities"). Such indemnification shall not apply to the production extent that such Claims are caused by (or are alleged to have been caused by) Lilly's: (i) negligence, gross negligence, recklessness or willful misconduct, (ii) manufacturing, packaging, testing, use, labeling, storage, handling, promotion, distribution and sale of Permax(R) outside the Products Territory or prior to the date of execution of this Agreement within the Territory or prior to the date of execution of this Agreement within the Territory, or (iii) breach of any representations, warranty or covenant under this Agreement (collectively, "Lilly Activities").
10.2 Lilly shall indemnify and hold Amarin, its officers, directors, employees and agents harmless from and against any and all Claims incurred by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthrendered against Amarin, the sale of food its officers, directors, employees and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action agents to the extent such claim or action is attributable Claims are caused by Lilly Activities. Such indemnification shall not apply to the alteration, handling extent that such Claims are caused by (or misbranding of Products after they alleged to have been delivered caused by) Amarin Activities.
10.3 Lilly shall promptly notify Amarin of any Claim brought against Lilly for which Lilly seeks indemnification and shall permit Amarin, at Amarin's cost and expense, to ENBC or respond to and control the defense of such Claim. Lilly shall have the right to participate in any ENBC Subsidiary or ENBC Franchisee or is attributable defense to the use extent that in its judgment, Lilly will be prejudiced thereby. In any Claim in which Lilly seeks indemnification by Amarin, Lilly shall not settle, offer to settle or admit liability or damages in any such Claim without the Supplier consent of the FormulationsAmarin, Procedures and Specificationswhich consent shall not be unreasonably withheld.
11.2 ENBC agrees 10.4 Should Amarin seek indemnification from Lilly, Section 10.3 shall apply reciprocally.
10.5 Each party shall maintain levels of product liability insurance coverage consistent with general industry standards with respect to indemnify its activities as contemplated by this Agreement. Notwithstanding the Supplier forforegoing, Lilly may choose to self-insure and to hold Amarin may self-insure with Lilly's consent, which will not be unreasonably withheld.
10.6 In the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages event of a regulatory action or a private action in connection with any aspect of Amarin's marketing activity for Permax(R) (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of activity with any third party), Amarin will, in addition to the extent such claim or action is attributable to indemnification obligations set forth in Section 10.1, above, do the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carriesfollowing: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that act in full cooperating with Lilly to resolve the Supplieraction in an expeditious manner; and (ii) reimburse Lilly for any reasonable internal costs incurred by Lilly in defending, negotiating or settling the situation with the appropriate government body or private party. Lilly shall not settle any regulatory or private action without Amarin's comprehensive general liability coverage (including products liability) (the "Supplier CGLprior written consent, not to be unreasonably withheld.
10.7 The obligations in this Section 10 shall survive termination of this Agreement.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC Merger Agreement provides that the Surviving Corporation, for six and all ENBC Subsidiaries one-half years from and ENBC Franchisees forafter the Effective Time, will indemnify, defend and hold ENBC harmless the present and former officers and directors of the Company ("Covered Parties") against all ENBC Subsidiaries losses, claims, damages, liabilities, costs and ENBC Franchisees expenses, including attorneys' fees and expenses, judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation whether arising before or after the Effective Time (each a "Claim") to the extent that purchase Products harmless any such Claim is based on, 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 matter of fact arising, existing or accruing prior to or at the Effective 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 Corporation will, for six and one-half years from and againstafter the Effective Time, all expenses, losses, costs, deficiencies, liabilities maintain in effect directors' and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by officers' liability insurance policies for the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee Covered Parties with respect to any claim or action matters occurring prior to the extent such claim or action Effective Time that is attributable at least equal to the alterationCompany's current directors' and officers' liability insurance policies. STATE TAKEOVER LAWS Under the Merger Agreement, handling the 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 validity or misbranding applicability to such transactions of Products any state takeover law. COOPERATION WITH FINANCING During the period prior to the Effective Time, the Company will cooperate with Merger Sub and will use commercially reasonable efforts to cooperate with and provide information to Merger Sub to assist with Merger Sub's financing of the Merger. EQUITY SECURITIES OF THE COMPANY Under the Merger Agreement, during the period beginning on the date of the Merger Agreement and ending on the first to occur of the completion of the Merger or the date nine months after they have been delivered the date of termination of the Merger Agreement, neither Saw Mill, Parent nor Merger Sub will, directly or indirectly, acquire or propose to ENBC acquire ownership, beneficially or of record, of any equity securities of the Company or any ENBC Subsidiary or ENBC Franchisee or is attributable of its subsidiaries, except pursuant to the use by Merger Agreement and, immediately prior to the Supplier completion of the FormulationsMerger, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with pursuant to the production or sale limited partnership agreement of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, Saw Mill and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsContribution Agreement.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Proxy Statement (Jason Inc)
Indemnification and Insurance. 11.1 The Supplier agrees (a) Without limiting any other rights available to indemnify ENBC the ROC Indemnified Parties (hereinafter defined) TPCO and all ENBC Subsidiaries and ENBC Franchisees forits affiliated entities (the “TPCO Entities”) shall indemnify, defend and hold ENBC ROC and all ENBC Subsidiaries its affiliates (and ENBC Franchisees that purchase Products each of their respective members, managers, directors, officers, employees, agents and affiliates, as applicable, collectively, the “ROC Indemnified Parties”) harmless from and againstagainst any and all obligations, all expensesdamages, losses, costs, deficiencies, liabilities and damages expenses (including related counsel reasonable outside attorneys’ fees), causes of action, claims or demands (collectively, “Losses”) incurred by such ROC Indemnified Parties arising from any third-party demands, claims, actions, causes of action, suits, proceedings, investigations or suffered by them resulting from: inquiries, or any settlement thereto, and all related expenses, including, but not limited to, all litigation expenses (aincluding reasonable outside attorneys’ fees and court costs) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any all of the covenants foregoing, collectively, “Claims”) that arise from or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production business or sale other activities of the Products by the Supplier TPCO Entities (including without limitation or any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of businessthem), providedpast, however, that the Supplier shall have no obligation to indemnify ENBC present or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action future except to the extent caused by gross negligence or willful misconduct of any ROC Indemnified Party. If ROC becomes aware of any circumstances of any Claim that might or does give rise to a claim for indemnification, then ROC shall promptly notify TPCO in writing of any such cause of action, claim or action is attributable to the alterationdemand, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier and TPCO shall take control of the Formulationsdefense and investigation of such Claim and employ counsel reasonably acceptable to ROC, Procedures at TPCO’s sole cost and Specifications.
11.2 ENBC agrees to indemnify the Supplier forexpense. Failure or delay in providing such notice shall not relieve TPCO of its indemnification obligations, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, except to the extent such claim TPCO demonstrates that the defense or action is attributable settlement of the Claim has been prejudiced thereby. TPCO may settle a Claim without the prior written consent of the ROC Indemnified Party, provided TPCO will not enter into any settlement that (i) provides for any relief other than the payment of monetary damages payable solely by TPCO, (ii) includes an admission of wrongdoing on the part of any ROC Indemnified Party or (iii) does not include as an unconditional term thereof the giving by the third-party claimant to the use by ROC Indemnified Party of a release from all liability in respect thereof. The ROC Indemnified Party will have the Supplier of right, but not the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dressobligation, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (employ separate counsel and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party participate in the defense of any claim such Claim at its sole cost (unless such separate counsel is required due to a conflict of interest with TPCO’s counsel, in which case the TPCO shall indemnify and reimburse the ROC Indemnified Party for the cost of its separate counsel). If TPCO does not confirm agreement to conduct the defense on behalf of the ROC Indemnified Party at its sole cost within thirty (30) days following XXX’s request therefor, the ROC Indemnified Party may defend against such Claim and consent to the entry of any judgment in each case in consultation with TPCO; provided that the ROC Indemnified Party shall in no event settle any Claim without the prior consent of TPCO, such consent not to be unreasonably withheld, conditioned or action by delayed. TPCO shall pay for reasonable expenses to the other party ROC Indemnified Party on reasonable intervals as an integral part of its indemnification obligations hereunder. The obligations of the TPCO Entities under this Section 7(a) shall survive for a period of five (5) years and the TPCO Entities shall have no indemnification obligations under this Agreement with respect to any Claims that first arise after the five (5)-year anniversary of this Agreement. For the avoidance of doubt, the obligations in this Section 7(a) shall continue to apply after the end of such five (5)-year period with respect to any Claims arising during such five (5)-year period.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC TPCO shall indemnify the Suppliermaintain, and hold the Supplier harmless from and againstcause its affiliates to maintain, such payment in accordance insurance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises respect to its businesses and operations coverage, owner's for a period of not fewer than two (2) years following the date hereof in amounts and contractor's protective coverage, products with coverages that are not materially less than that in effect on the date hereof and completed operations coverage, full blanket contractual coverage shall provide evidence thereof on request. The ROC Indemnified Parties and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC their successors and assigns shall be listed as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLon such policies.
Appears in 1 contract
Indemnification and Insurance. 11.1 From and after the Initial Closing date:
(a) The Supplier agrees Company shall include as part of its Certificate of Incorporation and Bylaws provisions relating to the indemnification of all current and former directors, officers, employees and agents of the Company which are no less favorable than the provisions contained in the Company's Certificate of Incorporation and Bylaws as of the date hereof. Such provisions shall not be amended, repealed or otherwise modified for a period of not less than six years after the Initial Closing Date in any manner that would adversely affect the rights thereunder of individuals who as of the date hereof were directors, offices, employees or agents of the 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) The Company shall, to the fullest extent permitted under applicable law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and all ENBC former director, officer, employee and agent of the Company or any of its Subsidiaries and ENBC Franchisees that purchase Products harmless from and against(collectively, all expensesthe "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (including related counsel feesx) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of or pertaining to the production transactions contemplated by this Agreement or sale (y) otherwise with respect to any act or omissions occurring at or prior to the Initial Closing Date, in each case for a period of not less than six years after the Products Initial Closing Date. In the event of any such claim, action, suit, proceeding or investigation, whether arising before or after the Initial Closing Date (i) any counsel retained by the Supplier Indemnified Parties for any period after the Initial Closing Date shall be reasonably satisfactory to the Company, (including ii) after the Initial Closing date, the Company shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received, and (iii) the Company shall cooperate in defense of any claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that the Supplier Company shall have no obligation not be liable for any settlement effected without its written consent (which consent 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 indemnify ENBC indemnification in respect of any such 45 claim or claims shall continue until the disposition of any ENBC Subsidiary or ENBC Franchisee and all such claims. The Indemnified Parties as a group may retain only one law firm to represent them with respect to any claim single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency more indemnified parties in connection with the production or sale of the Products by the Supplier (including without which case this limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationsnot apply.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumerFor the period not less than six years after the Initial Closing Date, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use Company shall maintain in effect directors' and officers' liability insurance covering those persons who are currently covered by the Supplier Company's directors' and officers' liability insurance policy on terms no less favorable that those now applicable to directors and officers of the FormulationsCompany, Procedures and Specifications or is attributable to provided that in no event shall the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may Company be required to enter into indemnity agreements with Authorized Recipients. ENBC and expend annually more than 150% of the Supplier agree amount that (a) the Company spent for these purposes in the event ENBC last fiscal year to maintain or any ENBC Subsidiary or ENBC Franchisee procure insurance coverage pursuant hereto; and provided further that if the Company is obligated unable to make indemnity payments under any obtain the insurance called for by this section the Company will obtain as much comparable insurance as is available for such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofamount per year.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Aames Financial Corp/De)
Indemnification and Insurance. 11.1 The Supplier 10.1 LICENSEE agrees to hold harmless and indemnify ENBC BOARD, INVENTORS, SYSTEM, UT SOUTHWESTERN, its Regents, officers, employees and all ENBC Subsidiaries and ENBC Franchisees foragents (collectively, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless “Indemnitees”) from and againstagainst any claims, all expensesdemands, lossesor causes of action whatsoever, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant relating to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action)AGREEMENT, provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including without limitation those arising on account of any claim injury or death of infringement persons or violation damage to property caused by, or arising out of, or conflict withresulting from, any patent the exercise or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier practice of the Formulationslicense granted hereunder by LICENSEE, Procedures and Specifications its AFFILIATES or is attributable to the alterationtheir officers, handling employees, agents or misbranding representatives. The obligations of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use LICENSEE stated in this Paragraph 10.1 shall apply only if an Indemnitee promptly notifies LICENSEE in writing following receipt of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action suit brought against Indemnitee in respect of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2Indemnitee intends to invoke the provisions of this Paragraph 10.1. Subject to the statutory duties of the Texas Attorney General, and that each party will fully cooperate with LICENSEE shall have the other party in right to control the defense of any such action, including the right to select counsel to defend an Indemnitee and LICENSEE and to settle any claim or action by suit with the other party hereunderapproval of SYSTEM and UT SOUTHWESTERN, which approval will not be unreasonably withheld, conditioned or delayed. LICENSEE shall keep the Indemnitee informed on a regular basis of its defense of any claims pursuant to this Paragraph 10.1.
11.4 ENBC 10.2 Beginning at the time when any LICENSED PRODUCT is being distributed or SOLD (including for the purpose of obtaining regulatory approvals) by LICENSEE or by a sublicensee, LICENSEE will, at its sole cost and the Supplier acknowledge expense, procure and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive maintain commercial general liability insurance covering in amounts not less than $2,000,000 per incident and $2,000,000 annual aggregate, and LICENSEE will use reasonable efforts to have the Supplier's premises BOARD, SYSTEM, UT SOUTHWESTERN, its officers, employees and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC agents named as an additional insured and containing endorsements insureds. Such commercial general liability insurance will provide (i) providing that product liability coverage; (ii) broad form contractual liability coverage for LICENSEE’S indemnification under this AGREEMENT; and (iii) coverage for litigation costs. The minimum amounts of insurance coverage required will not be construed to create a limit of LICENSEE’S liability with respect to its indemnification under this AGREEMENT.
10.3 LICENSEE will provide BOARD with written evidence of such insurance upon BOARD’S request. LICENSEE will provide BOARD with written notice of at least 15 days prior to the Supplier's comprehensive cancellation, non-renewal or material change in such insurance.
10.4 LICENSEE will maintain such commercial general liability coverage insurance beyond the expiration or termination of this AGREEMENT during (including products liabilityi) the period that any LICENSED PRODUCT developed pursuant to this AGREEMENT is being commercially distributed or SOLD by LICENSEE or by a sublicensee or agent of LICENSEE; and (ii) the "Supplier CGL5 year period immediately after such period.
Appears in 1 contract
Samples: Exclusive Patent License Agreement (Peregrine Pharmaceuticals Inc)
Indemnification and Insurance. 11.1 The Supplier agrees Purchaser and Acquisition Sub agree that all rights to indemnify ENBC indemnification, advancement of expenses, exculpation, limitation of liability and any and all ENBC Subsidiaries similar rights now existing in favor of the employees, agents, directors or officers of the Company and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages its subsidiaries (including related counsel feesthe "Indemnified Parties") incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default as provided in the performance of any charter or by-laws or other agreements of the covenants or agreements Company in effect on the date hereof (copies of which have been made by available to the Supplier Purchaser), shall survive the Merger and shall continue in this Agreementfull force and effect for a period of six years from the Effective Time; (c) provided, however, that if any claim or action claims are asserted or made within such six-year period, all rights to indemnification in respect to any such claim or claims shall continue until the disposition of any and all such claims. The Purchaser shall cause the Surviving Corporation to honor and fulfill in all respects the indemnification obligations of the Company pursuant to the Company's charter, by-laws and such other agreements. The Purchaser and the Surviving Corporation shall pay to such Indemnified Party in advance of final disposition any expenses, including but not limited to counsel fees and disbursements, incurred by any consumer such Indemnified Party in defending any action, suit or any proceeding upon receipt of an undertaking (which need not be secured or subject to bond or other third party arising out requirement) by or on behalf of such Indemnified Party to repay the amounts so paid if it shall ultimately be determined that indemnification of such expenses is not authorized under such charter, bylaws or other agreement referred to above. The Purchaser agrees to provide each individual who served as a director or officer of the production Company or sale the subsidiaries at any time prior to the Effective Time with liability insurance, either directly or through the Purchaser's umbrella policy, for a period of six years after the Products by Effective Time on terms no less favorable in coverage and amount than any applicable insurance in effect immediately prior to the Supplier Effective Time (including any claims or actions for personal injury and any products liability claims or actioninsurance maintained by Purchaser), ; provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action Purchaser may reduce the coverage and amount of liability insurance to the extent that the cost thereof would exceed 300% of the cost of any such claim or action is attributable insurance in effect immediately prior to the alterationEffective Time, handling as adjusted for inflation each year; provided, further, however, that such coverage and amount of liability insurance shall not be reduced below the corresponding coverage and amount of liability insurance then provided for the Purchaser's own officers and directors. If at any time after the Effective Time the Surviving Corporation or misbranding of Products after they have been delivered a subsidiary fails to ENBC provide an Indemnified Party with indemnification and other benefits as contemplated in this Section 5.6, the Purchaser shall provide such indemnification and other benefits to such Indemnified Party directly (it being understood that applicable law may permit the Purchaser to indemnify/advance expenses under circumstances in which the Company, the Surviving Corporation or any ENBC Subsidiary or ENBC Franchisee or is attributable a subsidiary could not do so). In addition to the use foregoing, the Purchaser and the Company, jointly and severally, shall, to the fullest extent permitted by applicable law, indemnify and hold harmless the Supplier Indemnified Parties against all costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation arising out of actions or omissions in the applicable Indemnified Party's capacity as an agent, employee, officer or director of the FormulationsCompany or a subsidiary prior to the Effective Time until the expiration of the applicable statute of limitations relating thereto (and shall pay any expenses in advance of the final disposition of such action or proceeding to the Indemnified Party) to repay the advanced expenses if it shall ultimately be determined that the Indemnified Party is not entitled to be indemnified against such expenses). Notwithstanding the foregoing, Procedures to the extent the by-laws, charter, or other agreements of the Company do not otherwise provide the Indemnified Parties with rights to indemnification, advancement of expenses, exculpation, and Specifications; or the limitation of liability, the Purchaser pursuant to this Section 5.6 hereby acknowledges and agrees to indemnify and hold harmless the Indemnified Parties against all costs and expenses (d) including reasonable attorney's fees), judgements, fines, loses, claims, damages, liabilities and settlement amounts paid in connection with any claim action, suit, proceeding or action brought by any federal, state, local investigation arising out of actions or foreign governmental agency omissions of the Indemnified Parties in connection with the production or sale Transactions until the expiration of the Products by applicable statute of limitations relating thereto (and shall pay any expenses in advance of the Supplier (including without limitation any claim final disposition of such action or action under any law or regulation relating proceeding to public health, the sale Indemnified Parties). The provisions of food and drugsthis Section 5.6 shall survive the Effective Time, and the safe conduct Indemnified Parties shall be deemed third party beneficiaries of business), provided, however, that this Section 5.6 and shall be entitled to bring actions to enforce the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier obligations of the Formulations, Procedures Purchaser and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to Acquisition Sub under this Agreement; (b) any default in the performance of any Section 5.6. The rights of the covenants or agreements made by ENBC in Indemnified Parties under this Agreement; (c) any claim or action by any consumerSection 5.6 are not exclusive, governmental agency or but shall be cumulative with any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier rights of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7Indemnified Parties.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Liberty Financial Companies Inc /Ma/)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) From and all ENBC Subsidiaries after the First Effective Time, each of the First Surviving Corporation and ENBC Franchisees forthe Surviving Company shall, and Parent shall cause the First Surviving Corporation and the Surviving Company to, indemnify and hold ENBC harmless, to the fullest extent permitted by applicable Law, each present and all ENBC former director and officer of the Company and any of its Subsidiaries (in each case, when acting in such capacity) (collectively, together with their respective heirs, executors and ENBC Franchisees that purchase Products harmless from and againstadministrators, all expensesthe “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, costsclaims, deficienciesdamages or Liabilities incurred in connection with any claim, liabilities action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related to the fact that such person is or was a director or officer of the Company or any of its Subsidiaries and damages pertaining to matters existing or occurring or actions or omissions taken prior to the First Effective Time, including (including related counsel feesi) incurred the Transactions, and (ii) actions to enforce this Section 6.9 or suffered by them resulting from: (a) any breach other indemnification or advancement right of any representation or warranty made Company Indemnified Party, and each of the First Surviving Corporation and the Surviving Company shall, and Parent shall cause the First Surviving Corporation and the Surviving Company to, also advance expenses to the Company Indemnified Parties as incurred to the fullest extent permitted by applicable Law; provided that the Supplier in or pursuant Company Indemnified Party to this Agreement; whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable judicial determination that such Company Indemnified Party is not entitled to indemnification.
(b) All rights to indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the First Effective Time and rights to advancement of expenses relating thereto now existing in favor of any default Company Indemnified Party or as provided in the performance Company Organizational Documents (or Company Subsidiary Organizational Documents) or any indemnification agreements in existence as of the date hereof between such Company Indemnified Party and the Company or any of its Subsidiaries that are set forth on Section 6.9(b) of the covenants Company Disclosure Schedule, shall survive the Transactions and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or agreements made by otherwise modified for a period of six (6) years after the Supplier First Effective Time in this Agreement; any manner that would adversely affect the rights thereunder of such Company Indemnified Parties.
(c) Prior to the First Effective Time, the Company shall and, if the Company is unable to, the Surviving Company shall promptly following the First Effective Time, obtain and fully pay the premium for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the First Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable as the Company’s existing policies with respect to any claim actual or action by any consumer alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any other third party arising out matter claimed against a director or officer of the production Company or sale any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the First Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby). If the Company or the Surviving Company for any reason fail to obtain such “tail” insurance policies as of the Products by First Effective Time, then, for a period of six (6) years after the Supplier First Effective Time, the Surviving Company shall cause to be maintained in effect the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable as those provided in the Company’s existing policies as of the date hereof (including any provided that the Surviving Company may substitute therefor policies with a substantially comparable insurer of similar national reputation that have at least the same coverage and amounts as the D&O Insurance in place on the date hereof and containing terms, conditions, retentions and limits of liability which are no less advantageous to the Company Indemnified Parties than those of the D&O Insurance in place on the date hereof) with respect to claims arising from facts or events, or actions for personal injury and any products liability claims or action)omissions, which occurred or are alleged to have occurred at or before the First Effective Time; provided, however, that the Supplier Surviving Company shall have no obligation not be obligated to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action make annual premium payments for such insurance to the extent such claim or action is attributable premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Company shall cause to be maintained policies of TABLE OF CONTENTS insurance which, in the Surviving Company’s good faith determination, provide the maximum coverage available at an annual premium equal to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or Premium Cap.
(d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale The rights of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or each Company Indemnified Party pursuant to this Agreement; Section 6.9 shall be in addition to, and not in limitation of, any other rights such Company Indemnified Party may have under the Company Organizational Documents (bor Company Subsidiary Organizational Documents) or under any default in applicable Contracts or Law.
(e) If Parent or the performance of Surviving Company or any of the covenants their respective successors or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) 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 Supplier's comprehensive general liability coverage successors and assigns of Parent or the Surviving Company shall assume all of the obligations set forth in this Section 6.9.
(including products liabilityf) (The provisions of this Section 6.9 and Section 2.5(c) shall survive the "Supplier CGLFirst Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach Parent and Merger Sub agree that all rights to advancement of any representation or warranty made expenses, indemnification and exculpation by the Supplier Company and any Company Subsidiary now existing in favor of each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company or any Company Subsidiary (each an “Indemnified Party”) as provided in the Company’s or any Company Subsidiary’s certificate of incorporation or bylaws, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date of this Agreement; , shall survive the Merger. From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the certificate of incorporation and bylaws of the Company or any Company Subsidiary as in effect on the date of this Agreement.
(b) any default For six (6) years after the Effective Time, to the full extent permitted under applicable Law, Parent and the Surviving Corporation (the “Indemnifying Parties”) shall, jointly and severally, indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments or fines arising in the performance of any of the covenants whole or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising part out of actions or omissions in their capacity as such occurring at or prior to the production or sale of the Products by the Supplier Effective Time (including any claims or actions for personal injury in respect of this Agreement and any products liability claims or actionthe Merger), providedwhether asserted or claimed prior to, howeverat or after the Effective Time, that and shall advance each Indemnified Party within twenty (20) Business Days of receipt by Parent or the Supplier shall have no obligation to indemnify ENBC Surviving Corporation from the Indemnified Party of a request therefor for any reasonable legal or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent other expenses incurred by such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency Indemnified Party in connection with the production investigating or sale of the Products by the Supplier (including without limitation defending any claim such losses, claims, damages, liabilities, fees, expenses, judgments or action under any law or regulation relating to public healthfines as such expenses are incurred, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action but subject to the extent such claim or action is attributable to the alteration, handling or misbranding Indemnifying Parties’ receipt of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partyan unsecured undertaking, to the extent required by the DGCL, by or on behalf of the Indemnified Party to repay such claim expenses if it is ultimately determined that such Indemnified Party is not entitled to indemnification hereunder; provided, that nothing herein shall impair any rights to indemnification of any Indemnified Party referred to in clause (a) above.
(c) Parent and the Surviving Corporation shall, jointly and severally, cause the individuals who have served as officers and directors of the Company or action is attributable any Company Subsidiary prior to the use Effective Time who are then covered by the Supplier directors’ and officers’ liability insurance policy currently maintained by the Company (a correct and complete copy of which has been delivered or made available to Parent) (the “D&O Insurance”), to be covered under a directors’ and officers’ liability insurance policy on terms and conditions no less advantageous to such individuals than the Company’s and any Company Subsidiary’s existing directors’ and officers’ liability insurance policy for a period of not less than six (6) years after the Effective Time, but only to the extent related to actions or omissions of such officers and directors at or prior to the Effective Time (including in respect of this Agreement and the Merger) in their capacities as such, whether asserted or claimed prior to, at or after the Effective Time; provided, that in no event shall Parent or the Surviving Corporation be required to expend more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; provided, further, that if the amount of the Formulationsannual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Procedures Parent and Specifications the Surviving Corporation shall procure and maintain for such six-year (6) period as much coverage as is available for the Maximum Amount. Parent shall have the right to cause coverage to be extended under the D&O Insurance by obtaining a six (6) year “tail” policy on terms and conditions no less advantageous to such former directors or is attributable officers than the D&O Insurance, and such “tail” policy shall satisfy the provisions of this Section 5.9(c). Notwithstanding anything to the alterationcontrary in this Agreement, handling or misbranding of Products after they have been delivered the Company may, prior to ENBCthe Effective Time, or any ENBC Subsidiarypurchase such a “tail policy”, ENBC Franchisee or Authorized Recipient; or and Parent shall cause the Surviving Corporation to maintain such “tail” policy in full force and effect for its full term, in which case Parent shall be relieved from its obligations under this Section 5.9(c).
(d) any claim If Parent or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC Surviving Corporation or any ENBC Subsidiary of their respective successors or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing 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, Parent and the Surviving Corporation shall cause the successors and assigns of Parent or the Surviving Corporation, as the case may be, to assume the obligations set forth in this Section 5.9.
(e) The obligations of Parent and the Surviving Corporation under this Section 5.9 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 5.9 applies without the written consent of such affected Indemnified Party (it being expressly agreed that the Supplier's comprehensive general liability coverage Indemnified Parties to whom this Section 5.9 applies shall be third party beneficiaries of this Section 5.9, each of whom may enforce the provisions of this Section 5.9). Parent shall pay all expenses, including reasonable attorneys’ fees and expenses, that may be incurred by any Indemnified Party in connection with their enforcement of their rights provided in this Section 5.9.
(including products liabilityf) (The provisions of this Section 5.9 are intended to be in addition to the "Supplier CGLrights otherwise available to the current and former officers and directors of the Company by Law, charter, statute, bylaw or agreement.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier (a) Licensee hereby agrees to indemnify ENBC Licensor and all ENBC Subsidiaries undertakes to defend and ENBC Franchisees forhold Licensor, its affiliates and their respective officers, directors, agents, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products employees, harmless from and against:
(i) any and all claims, all expensessuits, losses, costsdamages and/or expenses, deficienciesincluding but not limited to attorneys' fees and disbursements, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach arising out of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer and all product liability claims or any other actions or recall expense to the extent involving the Licensed Product, except to the extent that such claims, suits or other actions arise out of the ownership, use or distribution of the Licensed Products prior to the date hereof, or involve claims that Licensee's use of the Canadian Licensed Trademarks infringes a third party party's proprietary rights, in which case Licensor shall defend and hold Licensee harmless for, and Licensor shall have exclusive control over, the defense, satisfaction and resolution of same, including any expenses and fees related to such defense; and
(ii) any and all fines, penalties or the like arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action all civil and/or administrative proceedings brought by any federal, state, provincial or local or foreign governmental agency agencies in connection with the production or sale of the Products Licensed Product(s) together with any and all costs incurred by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthLicensor in connection therewith, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action except to the extent that such claim fines, penalties or action is attributable the like arise out of the ownership, use or distribution of the Licensed Products prior to the alterationdate hereof, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the involve claims that Licensee's use by the Supplier of the FormulationsCanadian Licensed Trademarks infringes a third party's proprietary rights, Procedures in which case Licensor shall defend and Specifications.
11.2 ENBC agrees to indemnify the Supplier hold Licensee harmless for, and Licensor shall have exclusive control over, the defense, satisfaction and resolution of same, including any expenses and fees related to hold the Supplier harmless from such defense; and
(iii) any and againstall claims, all suits, loss, liability, damage, deficiency, costs and expenses, lossesincluding, costswithout limitation, deficienciesinterest, liabilities penalties and damages (including related counsel fees) incurred reasonable attorneys' fees and disbursements, arising out of or suffered by the Supplier resulting from: (a) otherwise in respect of any material breach of any representation representation, warranty, covenant or warranty made agreement by ENBC Licensee contained in or pursuant to this License Agreement; .
(b) any default in Licensee agrees to maintain at its own expense through purchased insurance throughout the performance Term of any of the covenants or agreements made by ENBC in this Agreement; License Agreement and for a period six (c6) any claim or action by any consumeryears thereafter, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operationsinsurance, including premises and operations coverageproduct liability insurance, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with in a minimum amount of Two Million Dollars ($2,000,000) combined single limit of $9,000,000 naming ENBC for each single occurrence, for bodily injury and property damage. Licensee shall have Licensor named as an additional insured on such policies. Licensee shall, within thirty (30) days after the date hereof, provide to Licensor a certificate of such insurance from the insurance carrier which sets forth the scope of coverage and containing endorsements (i) providing the limits of liability stated above without any provision for material deductibles or self- insured retention's, and further provides that the Supplier's comprehensive general liability policies may not be materially changed or canceled without at least (30) days' prior written notice to Licensor. Prior to any such cancellation, Licensee shall provide Licensor with a certificate of insurance evidencing that a new insurance policy with the same coverage (and terms described above will be in place prior to such termination. Upon reasonable request by Licensor, Licensee shall deliver to Licensor evidence in form and substance reasonably satisfactory to Licensor, of the maintenance and renewal of the required insurance, including products liability) (the "Supplier CGLwithout limitation, renewal certificates and copies of those portions of policies, riders and endorsements pertaining to this License Agreement.
Appears in 1 contract
Samples: Settlement Agreement (Stephan Co)
Indemnification and Insurance. 11.1 The Supplier agrees Company shall, to the maximum extent permitted by Applicable Laws, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless the LLCP Representative, each LLCP representative on the Operating Committee, LLCP and LLCP’s employees, general and limited partners, principals, agents, attorneys, accountants, representatives and affiliates (collectively, the “LLCP Parties”) from all ENBC Subsidiaries costs, expenses, liabilities, claims, damages and ENBC Franchisees losses, including attorneys’ fees and the cost of any investigation and preparation incurred in connection therewith (collectively, “Liabilities and Costs”), arising out of or in any way related to the fact that purchase Products harmless from any LLCP Party is or was a director or other agent of the Company or any Subsidiary of the Company, served on the Operating Committee or, while a director or other agent, is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise. Upon request by any LLCP Party, the Company shall advance (within ten (10) Business Days of such request) any and against, all expenses, losses, costs, deficiencies, liabilities including any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all attorneys’ fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier in or pursuant may be entitled to this Agreementindemnification hereunder; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that, if and to the extent that the Supplier shall have no obligation a court of competent jurisdiction finally determines that such LLCP Party is not permitted to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be indemnified with respect to such matter under Applicable Laws, the Company shall be entitled to reimbursement of any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or expenses so advanced. The Company shall also indemnify each LLCP Party from and against any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party’s rights under this Section 1.6, or under Applicable Laws or the Company’s Articles of Incorporation or Bylaws now or hereafter in effect relating to indemnification, or for recovery under directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If for any reason the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company’s reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC otherwise have at law or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d)other agreement, inclusive, of Section 11.1 hereofincluding without limitation, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee forSecurities Purchase Agreement, and hold ENBC such obligations shall extend, upon the same terms, to all LLCP Parties. This Section 1.6 shall survive indefinitely the termination of this Agreement. At any time that an LLCP Representative is serving on the Board of Directors, the Company shall maintain in force and such ENBC Subsidiary effect one or ENBC Franchisee harmless from more insurance policies providing at least $10,000,000 in insurance coverage for director liability, including coverage for claims under federal and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 state securities laws. The Supplier Company represents and warrants to LLCP that it carries: (a) currently maintains in effect one or more insurance policies of worker's compensation and employer's liability providing at least $10,000,000 in insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operationscoverage for director liability, including premises coverage for claims arising under federal and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLstate securities laws.
Appears in 1 contract
Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) From and all ENBC Subsidiaries after the First Effective Time, each of the First Surviving Corporation and ENBC Franchisees forthe Surviving Company shall, and Parent shall cause the First Surviving Corporation and the Surviving Company to, indemnify and hold ENBC harmless, to the fullest extent permitted by applicable Law, each present and all ENBC former director and officer of the Company and any of its Subsidiaries (in each case, when acting in such capacity) (collectively, together with their respective heirs, executors and ENBC Franchisees that purchase Products harmless from and againstadministrators, all expensesthe “Company Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, costsclaims, deficienciesdamages or Liabilities incurred in connection with any claim, liabilities action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related to the fact that such person is or was a director or officer of the Company or any of its Subsidiaries and damages pertaining to matters existing or occurring or actions or omissions taken prior to the First Effective Time, including (including related counsel feesi) incurred the Transactions, and (ii) actions to enforce this Section 6.9 or suffered by them resulting from: (a) any breach other indemnification or advancement right of any representation or warranty made Company Indemnified Party, and each of the First Surviving Corporation and the Surviving Company shall, and Parent shall cause the First Surviving Corporation and the Surviving Company to, also advance expenses to the Company Indemnified Parties as incurred to the fullest extent permitted by applicable Law; provided that the Supplier in or pursuant Company Indemnified Party to this Agreement; whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final and nonappealable judicial determination that such Company Indemnified Party is not entitled to indemnification.
(b) All rights to indemnification and exculpation from Liabilities for acts or omissions occurring at or prior to the First Effective Time and rights to advancement of expenses relating thereto now existing in favor of any default Company Indemnified Party or as provided in the performance Company Organizational Documents (or Company Subsidiary Organizational Documents) or any indemnification agreements in existence as of the date hereof between such Company Indemnified Party and the Company or any of its Subsidiaries that are set forth on Section 6.9(b) of the covenants Company Disclosure Schedule, shall survive the Transactions and shall continue in full force and effect in accordance with their terms, and shall not be amended, repealed or agreements made by otherwise modified for a period of six (6) years after the Supplier First Effective Time in this Agreement; any manner that would adversely affect the rights thereunder of such Company Indemnified Parties.
(c) Prior to the First Effective Time, the Company shall and, if the Company is unable to, the Surviving Company shall promptly following the First Effective Time, obtain and fully pay the premium for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the First Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable as the Company’s existing policies with respect to any claim actual or action by any consumer alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any other third party arising out matter claimed against a director or officer of the production Company or sale any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the First Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby). If the Company or the Surviving Company for any reason fail to obtain such “tail” insurance policies as of the Products by First Effective Time, then, for a period of six (6) years after the Supplier First Effective Time, the Surviving Company shall cause to be maintained in effect the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable as those provided in the Company’s existing policies as of the date hereof (including any provided that the Surviving Company may substitute therefor policies with a substantially comparable insurer of similar national reputation that have at least the same coverage and amounts as the D&O Insurance in place on the date hereof and containing terms, conditions, retentions and limits of liability which are no less advantageous to the Company Indemnified Parties than those of the D&O Insurance in place on the date hereof) with respect to claims arising from facts or events, or actions for personal injury and any products liability claims or action)omissions, which occurred or are alleged to have occurred at or before the First Effective Time; provided, however, that the Supplier Surviving Company shall have no obligation not be obligated to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action make annual premium payments for such insurance to the extent such claim or action is attributable premiums exceed 300% of the premiums paid as of the date hereof by the Company for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Company shall cause to be maintained policies of insurance which, in the Surviving Company’s good faith determination, provide the maximum coverage available at an annual premium equal to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or Premium Cap.
(d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale The rights of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or each Company Indemnified Party pursuant to this Agreement; Section 6.9 shall be in addition to, and not in limitation of, any other rights such Company Indemnified Party may have under the Company Organizational Documents (bor Company Subsidiary Organizational Documents) or under any default in applicable Contracts or Law.
(e) If Parent or the performance of Surviving Company or any of the covenants their respective successors or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) 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 Supplier's comprehensive general liability coverage successors and assigns of Parent or the Surviving Company shall assume all of the obligations set forth in this Section 6.9.
(including products liabilityf) (The provisions of this Section 6.9 and Section 2.5(c) shall survive the "Supplier CGLFirst Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Synageva Biopharma Corp)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC Section 7.1. Licensor hereby indemnifies and hold harmless Licensee, ----------- its Subsidiaries and Affiliates and their respective directors, employees, agents and representatives from and against any and all ENBC Subsidiaries and ENBC Franchisees forclaims, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expensessuits, losses, costsdamages, deficienciesfines, liabilities and damages penalties, expenses (including related counsel including, but not limited to, attorney's fees) incurred or suffered actions by them resulting from: (a) any breach third parties against Licensee alleging trademark infringement arising out of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance based upon Licensee's authorized use of any of the covenants or agreements made by Licensed Trademarks in the Supplier in this AgreementTerritory; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any Licensee gives Licensor prompt written notice of such suit, claim or action to and cooperates fully with Licensor in defending the extent such claim same.
Section 7.2. Licensee hereby indemnifies and holds harmless Licensor, ----------- its Subsidiaries and Affiliates and their respective directors, employees, agents and representatives from and against any and all claims, suits, losses, damages, fines, penalties, expenses (including, but not limited to, attorney's fees) or action is attributable to the alterationactions by third parties arising out of or based upon:
(a) Licensee's or its Manufacturing Agents' processing, handling distribution or misbranding sale of Products after they have been delivered to ENBC bearing a Licensed Trademark; or
(b) any breach by Licensee or its Manufacturing Agents of their obligations hereunder; or
(c) any ENBC Subsidiary proceeding brought by any person, governmental agency or ENBC Franchisee consumer group in connection with the Products processed, sold or is attributable to the use distributed by the Supplier of the Formulations, Procedures and SpecificationsLicensee or its Manufacturing Agents bearing or using a Licensed Trademark; or or
(d) any claim or action brought by violations of any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any applicable law or regulation or civil claims relating to public healththe manufacture, the sale processing, sale, distribution, promotion or advertising of food and drugsProducts bearing or using a Licensed Trademark, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is unless attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any Licensor's breach of any representation or warranty made by ENBC in or pursuant to its obligations under this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party . Licensor may participate in the defense of any claim or action by the other party hereundersuch litigation.
11.4 ENBC Section 7.3. Licensee shall be solely responsible for the acts and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements ----------- omissions of those with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC whom it or its Manufacturing Agents contract for any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any aspect of the matters described in clauses (a) through (d)processing, inclusive, distribution or sale of Section 11.1 hereof, the Supplier shall indemnify ENBC Products bearing or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofusing a Licensed Trademark.
11.5 The Supplier represents and warrants Section 7.4. In order to assure its ability to discharge its ----------- obligations to Licensor, Licensee agrees that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal lawswill maintain throughout the Term at its expense, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operationsinsurance, including premises product liability insurance and operations coveragecontractual liability coverage specifically endorsed to cover the indemnity provisions in this Agreement, owner's and contractor's protective coveragefrom a carrier satisfactory to Licensor, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with in a minimum amount of Five Million Dollars ($5,000,000.00) combined single limit of $9,000,000 naming ENBC for each single occurrence, for bodily injury and property damage, which shall designate Licensor as an additional insured and containing endorsements therein. The policy shall provide for thirty (i30) providing that days prior written notice to Licensor from the Supplier's comprehensive general liability insurer in the event of any material modification, cancellation or termination. Licensee shall deliver certificates of such insurance coverage (including products liability) (to Licensor prior to the "Supplier CGLsale and/or distribution of any Products or bearing a Licensed Trademark.
Appears in 1 contract
Samples: Trademark License Agreement (Eagle Family Foods Inc)
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, to the fullest extent permitted under applicable Laws, Parent shall cause the Surviving Entity to (i) indemnify ENBC and hold harmless each Indemnified Person against any reasonable costs or expenses (including reasonable attorneys’ fees and all ENBC Subsidiaries other reasonable costs, expenses and ENBC Franchisees forobligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and hold ENBC binding costs, as well as telecommunications, postage and all ENBC Subsidiaries 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 arising out of, relating to or in connection with their status or duties as an Indemnified Person, any act or omission by them in their capacities as such occurring or alleged to have occurred at or prior to the Effective Time or any other matter existing at or prior to the Effective Time relating to or that may involve their status or duties as an Indemnified Person (including this Agreement and ENBC Franchisees that purchase Products harmless from the transactions and againstactions contemplated hereby), all expensesincluding any such Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, costsclaims, deficienciesdamages or liabilities, liabilities penalties and damages amounts paid in settlement (including related counsel fees) incurred all interest, assessments and other charges paid or suffered by them resulting from: (a) any breach payable in connection with or in respect of any representation thereof) in connection with any such actual or warranty made threatened Proceeding, and, upon receipt by Surviving Entity of an undertaking by or on behalf of the Supplier 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, provide advancement of expenses with respect to each of the foregoing to, all Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the Organizational Documents of the Partnership and the General Partner immediately prior to the Effective Time, and ensure that the Organizational Documents of the Partnership and the General Partner or any of their respective successors or assigns, if applicable, shall, for a period of six years following the 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 Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Agreement; Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent, Surviving Entity and the General Partner and their respective successors and assigns.
(b) any default in the performance of any The Surviving Entity, or Parent on behalf of the covenants Surviving Entity if Parent, in its sole discretion so elects, shall maintain in effect for a period of six years following the Effective Time the Partnership’s current directors’ and officers’ liability insurance policies covering acts or agreements made by omissions occurring at or prior to the Supplier in this Agreement; Effective Time with respect to Indemnified Persons (c) any claim provided, that the Surviving Entity, or action by any consumer or any other third party arising out Parent on behalf of the production or sale Surviving Entity if Parent so elects, may substitute therefor policies with reputable carriers of at least the Products by same coverage containing terms and conditions that are no less favorable to the Supplier (including any claims or actions for personal injury and any products liability claims or actionIndemnified Persons), ; provided, however, that in no event shall the Supplier Surviving Entity or Parent, as applicable, be required to expend pursuant to this Section 6.6(b) more than an amount per year 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 if Parent had so elected to provide such insurance, shall have obtain the maximum amount of such insurance as is available for the Maximum Amount. In lieu of the obligations of the Surviving Entity and Parent under this Section 6.6(b), the Partnership or Holdings may (but shall be under no obligation to), prior to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee the Effective Time, purchase a prepaid “tail policy” with respect to any claim acts or action omissions occurring or alleged to have occurred prior to the extent such claim Effective Time that were committed or action is attributable alleged to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use committed by the Supplier of the Formulations, Procedures and Specificationssuch Indemnified Persons in their capacity as such; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that in no event shall the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to cost of such policy exceed six times the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsMaximum Amount.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) The rights of any claim or action by Indemnified Person under this Section 6.6 shall be in addition to any consumerother rights such Indemnified Person may have under the Organizational Documents of each of the Partnership, governmental agency the General Partner, the Surviving Entity or any other third partySubsidiary of Parent or the Partnership, including any claim of infringement or violation ofindemnification agreements, or conflict withthe DLLCA or the DRULPA. The provisions of this Section 6.6 shall survive the consummation of the transactions contemplated by this Agreement and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Entity and/or the General Partner, or any patent of their respective successors or trade secret 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 third partyother Person, then, in each such case, to the extent such claim or action is attributable to necessary, a proper provision shall be made so that the use by successors and assigns of Parent, the Supplier Surviving Entity and/or the General Partner shall assume the obligations of Parent, the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (Surviving Entity and the right to establish the terms of any settlement) of any claim or action by any third party that could result General Partner set forth in such party having an indemnification obligation under this Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder6.6.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made Parent and Merger Sub agree that all rights to indemnification by the Supplier Company now existing in favor of each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company or any Company Subsidiary or an employee of the Company or any Company Subsidiary or who acts as a fiduciary under any of the Company Employee Benefit Plans (each an “Indemnified Party”) as provided in the Company’s certificate of incorporation or bylaws, in each case as in effect on the date of this Agreement, or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of agreements in effect on the production or sale of the Products by the Supplier (including any claims or actions for personal injury date hereof and any products liability claims or actionlisted on Schedule 3.18(a)(iv), providedcopies of which have been provided to Parent, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action including provisions relating to the extent such claim or action is attributable to the alteration, handling or misbranding advancement of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) expenses incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim action or action by suit, shall survive the other party hereunderMerger for a period of not less than six years after the Effective Time, but only to the extent related to actions or omissions prior to the Effective Time, and shall remain in full force and effect during such period (for the avoidance of doubt, nothing in this Agreement shall require, limit or restrict the Surviving Corporation to provide indemnification to any person with respect to actions or omissions occurring on and after the Effective Time). From and after the Effective Time, Parent and the Surviving Corporation shall be jointly and severally liable to pay and perform in a timely manner such indemnification obligations.
11.4 ENBC (b) For six years after the Effective Time, to the full extent permitted under applicable Law, Parent and the Supplier acknowledge Surviving Corporation (the “Indemnifying Parties”) shall, jointly and agree severally indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in respect of this Agreement), and shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred; provided that ENBCnothing herein shall impair any rights to indemnification of any Indemnified Party referred to in clause (a) above.
(c) Parent shall cause the Surviving Corporation to maintain the Company’s officers’ and directors’ liability insurance policies, ENBC Subsidiaries and ENBC Franchisees, in effect on the one handdate of this Agreement (the “D&O Insurance”), for a period of not less than six years after the Effective Time, but only to the extent related to actions or omissions prior to the Effective Time; provided 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 and (ii) such substitution shall not result in gaps or lapses of coverage with respect to matters occurring prior to the SupplierEffective Time; provided, on further, that in no event shall Parent or the other hand, may Surviving Corporation be required to enter into indemnity agreements with Authorized Recipients. ENBC expend more than an amount per year equal to 300% of current annual premiums paid by the Company for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Parent and the Supplier agree 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 obtaining a six-year “tail” policy on terms and conditions no less advantageous than the D&O Insurance, and such “tail” policy shall satisfy the provisions of this Section 6.9(c).
(d) The obligations of Parent and the Surviving Corporation under this Section 6.9 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 6.9 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9, each of whom may enforce the provisions of this Section 6.9).
(ae) in If Parent or the event ENBC Surviving Corporation or any ENBC Subsidiary of their respective successors or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing 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 Supplier's comprehensive general liability coverage (including products liability) (successors and assigns of Parent or the "Supplier CGLSurviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.9.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees SBFM hereby acknowledges that JGH's activities in connection with the Project are supplied only as results of laboratory experiments and any action taken by SBFM thereon and any outcome thereof are entirely the responsibility of SBFM. Neither the Institution nor Principal Investigator promises success in achieving any particular Project outcome. Except as expressly provided in this Agreement, the Principal Investigator makes no covenants, representations or warranties, express or implied as to indemnify ENBC any matter whatsoever, including without limitation the data, inventions or intellectual property rights conceived, discovered, developed or derived from the Project. SBFM hereby undertakes to indemnify, defend and hold harmless Institution, its trustees, directors, officers, affiliates, employees, agents, medical and professional staff, contractors, students, and their respective successors and assigns and Principal Investigator ("Institution lndemnitees") from any and all ENBC Subsidiaries and ENBC Franchisees forliabilities, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstloss, all expenses, losses, costs, deficiencies, liabilities and damages expense (including related counsel reasonable attorney fees) incurred or suffered by damages they may suffer as a result of claims, demands, costs or judgements against them resulting from: arising out of (a1) any breach the conduct of any representation the Project or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any the Agreement in accordance with the terms of the covenants Protocol; or agreements made by (2) SBFM's use of the Supplier in this Agreement; (c) any claim results or action by any consumer or any other infringement of third party arising out property rights; or (3) SBFM's negligence, wilful misconduct or breach of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), applicable laws; provided, however, that any such liability, loss, expense or damages is not the Supplier shall have no obligation result of failure by an Institution lndemnitee to indemnify ENBC comply with the signed Protocol for the Project or any ENBC Subsidiary and all applicable laws, regulations and guidelines. NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED AND WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF ANY PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Institution and SBFM each represent that they each have a sufficient general, commercial, professional or ENBC Franchisee with respect to any claim or action otherwise in the kind appropriate to the extent such claim circumstances insurance program, on either an indemnity or action is attributable self-insured basis, to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures fully perform their responsibilities hereunder. Principal Investigator represents that he shall secure and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency maintain in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food full force and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in effect throughout the performance of any the Agreement (and following termination of the covenants Agreement to cover any claims arising from the Agreement) membership in the Canadian Medical Protective Association ("CMPA") or agreements made by ENBC in this Agreement; (c) equivalent professional liability insurance coverage. Upon request from any claim Party, the other Party will transmit a certificate or action by any consumer, governmental agency or any other third party, including any claim attestation of infringement or violation of, or conflict with, any patent or trade secret of any third party, insurance to the extent such claim or action is attributable requesting Party. This Section of this Agreement shall survive any termination and shall continue to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used be in accordance with ENBC's instructions pursuant to Section 6.7effect indefinitely.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach Parent and Merger Sub agree that all rights to advancement of any representation or warranty made expenses, indemnification and exculpation by the Supplier Company now existing in favor of each Person who is now, or pursuant has been at any time prior to the date of this Agreement; (b) Agreement or who becomes prior to the Effective Time, an officer or director of the Company or any default in the performance officer, director, manager, partner, governor or similar of any of the covenants Company’s Subsidiaries (each an “Indemnified Party”) as provided in the Company Charter Documents or agreements made by the Supplier corresponding documents of any Company Subsidiary as in effect on the date of this Agreement; (c) any claim , or action by any consumer or pursuant to any other third party arising out indemnification agreements in effect on the date of this Agreement and set forth on Section 5.13 of the production or sale Company Disclosure Letter (collectively, the “Existing Indemnification Rights”) shall survive the Merger from the Effective Time through the sixth anniversary of the Products by date on which the Supplier Effective Time occurs. From and after the Effective Time, the Surviving Corporation shall (including any claims or actions for personal injury and any products liability claims or action)Parent shall cause the Surviving Corporation to) indemnify, provideddefend and hold harmless, howeverand advance expenses to, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee an Indemnified Party with respect to (x) all acts or omissions by them in their capacities as such at any claim time at or action prior to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; Effective Time or (dy) any claim costs or action brought by any federalexpenses (including attorneys’ fees), statejudgments, local or foreign governmental agency fines, losses, claims, damages, liabilities, and amounts paid in settlement in connection with the production any claim, action, suit, proceeding or sale of the Products by the Supplier (including without limitation any claim investigation, whether civil, criminal, administrative or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partyinvestigative, to the extent such claim claim, action, suit, proceeding or action is attributable investigation arises out of or pertains to the use Merger, this Agreement, and any Transactions, in their capacities as such, in either case, to the fullest extent permitted by the Supplier Existing Indemnification Rights. The articles of incorporation and bylaws of the FormulationsSurviving Corporation and of its Subsidiaries shall contain, Procedures and Specifications Parent shall cause the articles of incorporation and bylaws of the Surviving Corporation and each of its Subsidiaries to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the Company Charter Documents or the corresponding documents of the applicable Company Subsidiary as in effect on the date of this Agreement.
(b) Parent shall either (i) cause to be maintained in effect, for a period of six years after the Effective Time, the directors’ and officers’ liability insurance policy that is attributable in effect at the date of this Agreement and has been provided to Parent prior to the alteration, handling date hereof (the “D&O Insurance”) covering acts or misbranding omissions at or prior to the Effective Time with respect to those Persons who are covered by the D&O Insurance as of Products after they have been delivered to ENBCthe Effective Time, or (ii) obtain, in consultation with the Company, a prepaid (or “tail”) directors’ and officers’ liability insurance policy covering acts or omissions occurring at or prior to the Effective Time for a period of six years after the Effective Time, with respect to those Persons who are covered by the D&O Insurance as of the Effective Time on terms with respect to such coverage and amounts no less favorable to such indemnified Persons than those of the D&O Insurance; provided, that (A) Parent may substitute one or more policies of a reputable and financially sound insurance company for the D&O Insurance, so long as such substitute policies have at least the same coverage and amounts and contain terms and conditions which are no less favorable (in the aggregate) to the Persons currently covered by the D&O Insurance; (B) Parent shall not be required to pay any ENBC Subsidiaryannual premium for the D&O Insurance or any substitutes with respect thereto in excess of 300% of the amount paid by the Company for coverage for the period of twelve months most recently commenced prior to the date of this Agreement (the “Maximum D&O Premium”); and (C) if the premium for the D&O Insurance or any substitutes therefor exceeds such amount, ENBC Franchisee Parent shall purchase a substitute policy with the greatest coverage available for the Maximum D&O Premium. Parent shall provide a copy of such D&O Insurance to each director and officer of the Company.
(c) If Parent or Authorized Recipientthe 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 Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.13.
(d) 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 claim or action by any Indemnified Party to whom this Section 5.13 applies without the written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.13 applies shall be third party alleging infringement or violation ofbeneficiaries of this Section 5.13, or conflict with, any trademarks, trade names or trade dress, each of whom may enforce the provisions of this Section 5.13).
(e) The provisions of this Section 5.13 are intended to be in addition to the extent such claim or action is attributable rights otherwise available to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (current and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, former officers and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any directors of the matters described in clauses Company by Law, charter, statute, bylaw or agreement (a) through (dwith each such charter, statute, bylaw or agreement having been provided to Parent prior to the date hereof), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Surmodics Inc)
Indemnification and Insurance. 11.1 The Supplier agrees (a) Notwithstanding any change in the Company’s certificate of incorporation or bylaws, during the employment period and for a period of six years thereafter, the Company shall use its reasonable best efforts to cause the Executive to be covered by and named an insured under any policy or contract of insurance obtained by it to insure its directors and officers against personal liability for acts or omissions in connection with service as an officer or director of the Company or service in other capacities at the request of the Company.
(b) Notwithstanding any change in the Company’s certificate of incorporation or bylaws, during the employment period and for a period of six years thereafter, the Company shall indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, the Executive and hold ENBC him harmless, at a minimum in accordance with the provisions in effect as of the date of this Agreement in the Company’s certificate of incorporation and bylaws, but subject in all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstcases to any limitations under applicable law, all expensesagainst any losses, lossesclaims, damages, liabilities, costs, deficiencies, liabilities and damages expenses (including related counsel fees) incurred or suffered by them resulting from: (a) any breach advancing from time to time his attorney’s fees and expenses in advance of the final disposition of any representation claim, suit, proceeding or warranty investigation), judgments, fines and amounts paid in settlement in connection with any threatened or actual claim, action, suit, proceeding or investigation whether civil, criminal or administrative, in which the Executive is, or is threatened to be, made a party by the Supplier in reason of being or pursuant to this Agreement; (b) any default in the performance of any having been a director of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action)Company or, provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale administration of his official duties as assigned to him by the Board of Directors from time to time, as an officer of the Products by Company or serving or having served at the Supplier (request of the Company as a director, trustee, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action or failure to act in an official capacity as a director, trustee, officer, employee or agent. The Executive hereby undertakes to repay any claim or action and all attorney’s fees and expenses paid to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use Executive in advance by the Supplier Company if it is finally determined by a court of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing competent jurisdiction that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLExecutive is not entitled to indemnification hereunder with respect to such fees and expenses.
Appears in 1 contract
Samples: Employment Agreement (Ezenia Inc)
Indemnification and Insurance. 11.1 Section 7.1 After the Closing Date, the certificate of incorporation and bylaws of the Company and each of its Subsidiaries shall contain provisions with respect to indemnification no less favorable than those set forth in the certificate of incorporation and the bylaws of the Company and each of its Subsidiaries on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Closing Date in any manner that would adversely affect the rights thereunder as of the Closing Date of individuals who at the Closing Date were directors, officers, employees or agents of the Company or such Subsidiary, unless such modification is required after the Closing Date by law.
Section 7.2 The Supplier agrees Company shall, and the Investor Group, to the extent of the liability limit hereinafter provided, shall cause the Company, to the fullest extent permitted under applicable law or under the Company's or such Subsidiary's certificate of incorporation or bylaws or any indemnification agreement in effect as of the date hereof, to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, each present and all ENBC former director, officer or employee of the Company or any of its Subsidiaries (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees and ENBC Franchisees that purchase Products harmless from and againstdisbursements), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages (including related counsel fees) incurred amounts paid in settlement in connection with any claim, action, suit, proceeding or suffered by them resulting from: investigation, whether civil, criminal, administrative or investigative, or otherwise (a) arising out of or pertaining to the transactions contemplated by this Agreement (but excluding any breach matter to the extent involving an Indemnified Party in a capacity other than as a director, officer, employee or agent of any representation the Company) or warranty made by the Supplier in or pursuant to this Agreement; (b) with respect to any default acts or omissions occurring at or prior to the Closing Date, to the same extent as provided in the performance Company's or such Subsidiary's certificate of incorporation or bylaws or any applicable contract or agreement as in effect on the Closing Date, 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 Closing Date) and subject to the specific terms of any indemnification contract (except as provided in the covenants or agreements made joint defense agreement contemplated by Section 2.3(e) insofar as it may affect the procedure for the determination of entitlement to indemnification), (a) after the Closing Date, the Company shall pay the reasonable fees and expenses of any counsel retained by the Supplier Indemnified Parties, promptly after statements therefor are received and (b) the Company shall cooperate in this Agreement; (c) the defense of any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action)such matter, provided, however, that in the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to event that any claim or action claims for indemnification are asserted or made within the foregoing six year period, all rights to the extent indemnification in respect of any such claim or action is attributable claims shall continue until the disposition of any and all such claims. Notwithstanding any contrary provision of this Section 7.2, the liability of the Investor Group to cause the Company and its Subsidiaries to indemnify and hold harmless their present and former directors, officers and employees shall be limited to the alterationaggregate amount of cash and fair market value of property received by the Investors and their successors in interest as payments in redemption of the Preferred Stock (but excluding any amounts paid in redemption that represent accrued and unpaid dividends on the Preferred Stock) and as distributions on the Preferred Stock, handling excluding dividends accrued and paid in cash or misbranding in kind at the stated dividend rates for the Preferred Stock and "Ordinary Dividends" (as defined in the Certificates of Products Designation).
Section 7.3 In addition, the Company shall provide, for a period of not less than six years after they have been delivered to ENBC the Closing Date, the Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring at or any ENBC Subsidiary or ENBC Franchisee or is attributable prior to the use by Closing Date (the Supplier of "D&O Insurance") that is no less favorable than the Formulationsexisting policy or, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthif substantially equivalent insurance coverage is unavailable, the sale of food and drugs, and the safe conduct of business), best available coverage; provided, however, that the Supplier Company shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may not be required to enter into indemnity agreements with Authorized Recipients. ENBC and pay an annual premium for the Supplier agree that (a) D&O Insurance in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any excess of 200% of the matters described annual premium currently paid by the Company for such insurance, but in clauses (a) through (d), inclusive, such case shall purchase as much of such coverage as possible for such amount.
Section 11.1 hereof, 7.4 This Article 7 shall survive the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any consummation of the matters described in clauses (a) through (d)transactions contemplated by this Agreement at the Closing Date, inclusiveis intended to benefit the Indemnified Parties, shall be binding on all successors and assigns of Section 11.2 hereof, ENBC the Company and shall indemnify be enforceable by the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofIndemnified Parties.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Recapitalization Agreement (Us Franchise Systems Inc/)
Indemnification and Insurance. 11.1 (a) The Supplier agrees Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation and Bylaws, respectively, of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company or any of its subsidiaries. After the Closing, the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and former director and officer of the Company and each of its subsidiaries at or prior to the Effective Time (collectively, the "INDEMNIFIED PARTIES") against all ENBC Subsidiaries costs and ENBC Franchisees that purchase Products harmless from and againstexpenses (including attorneys' fees), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (including related counsel fees) incurred whether arising before or suffered by them resulting from: (a) after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any breach of any representation action or warranty made by omission, in his or her capacity as an officer, director, employee, fiduciary or agent, occurring on or before the Supplier in or pursuant Effective Time, to this Agreement; (b) any default the same extent as provided in the performance Certificate of any Incorporation or Bylaws of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer Company, or any other third party arising out applicable contract or agreement, in effect on the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the production or sale Surviving Corporation shall pay the reasonable fees and expenses of the Products counsel selected by the Supplier Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received (including provided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification) and (ii) the Surviving Corporation shall cooperate in the defense of any claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that the Supplier Surviving Corporation shall have no obligation not be liable for any settlement effected without the Surviving Corporation's written consent (which consent shall not be unreasonably withheld or delayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to indemnify ENBC or this Section 5.4(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 ENBC Subsidiary or ENBC Franchisee jurisdiction with respect to any claim or single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided, further, that, in the event that any claim for indemnification is asserted or made within six (6) years after the Effective Time, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(b) The Surviving Corporation shall either (i) cause to be obtained at 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 action is attributable events that occurred on or prior to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsEffective Time; or (dii) any claim or action brought by any federalmaintain in effect for six years from the Effective Time, stateif available, local or foreign governmental agency in connection with the production or sale of the Products current directors' and officers' liability insurance policies maintained by the Supplier Company (including without limitation any claim provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not less favorable) with respect to matters occurring on or action under any law or regulation relating prior to public health, the sale of food and drugs, and the safe conduct of business), Effective Time; provided, however, that in no event shall the Supplier shall have no obligation Surviving Corporation, in order to indemnify ENBC or obtain the insurance policies required under this Section 5.4(b), be required to expend in any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent year during such claim or action is attributable to the alteration, handling or misbranding six (6) year period more than 300% of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use current annual premiums paid by the Supplier Company for current comparable insurance coverage; provided, however, that in the event of an expiration, termination or cancellation of such current policies, the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount. The Company represents that such current annual premium amount is set forth in SECTION 5.4(B) of the Formulations, Procedures and SpecificationsCompany Disclosure Schedule.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other third party, including any claim person and shall not be the continuing or surviving corporation or entity of infringement such consolidation or violation ofmerger, or conflict with(ii) transfers all or substantially all of its properties and assets to any person, any patent or trade secret then, and in each such case, proper provision shall be made so that the successors and assigns of any third party, the Surviving Corporation shall succeed to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or obligations set forth in this Section 5.4.
(d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use The provisions of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to this Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements 5.4 (i) providing are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLany such person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Lone Star Steakhouse & Saloon Inc)
Indemnification and Insurance. 11.1 (i) Company shall indemnify the Executive, to the maximum extent permitted by law if he is made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of Company to procure a judgment in its favor (collectively, a “Proceeding”), for any losses incurred by the Executive: i) as a direct consequence of the discharge of Executive’s duties or by reason of the fact that the Executive is or was a director or officer of Company; (ii) as a direct consequence of Executive’s obedience to the directions of Company (and, in the case of a criminal proceeding, actions for which Executive had no reasonable cause to believe they were unlawful). The Supplier agrees indemnification shall include judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys’ fees and disbursements) paid or incurred in connection with any such Proceeding; Company shall, from time to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees fortime, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstin the sole discretion of Company’s Board of Directors, all reimburse or advance to the Executive the funds necessary for payment of expenses, lossesincluding attorneys’ fees and disbursements, costsincurred in connection with any Proceeding in advance of the final disposition of such Proceeding; provided, deficiencieshowever, liabilities that, if required by applicable law, such expenses incurred by or on behalf of the Executive may be paid in advance of the final disposition of a Proceeding only upon receipt by Company of an undertaking, by or on behalf of the Executive, to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that the Executive is not entitled to he indemnified for such expenses. The right to indemnification and damages (including related counsel fees) incurred reimbursement or suffered by them resulting from: (a) any breach advancement of expenses provided by, or granted pursuant to, this Section shall not be deemed exclusive of any representation other rights which the Executive may now or warranty made by the Supplier hereafter have under any law, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in or pursuant Executive’s official capacity and as to this Agreementaction in another capacity while holding such office; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier Company shall not be obligated to reimburse or advance expenses which have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action been paid directly to the extent such claim Executive under the Company’s director and officer liability insurance. The right to indemnification and reimbursement or action is attributable advancement of expenses provided by, or granted pursuant to, this Section shall continue as to the alterationExecutive after he has ceased to be a director, handling officer or misbranding employee of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable Company and shall inure to the use benefit of the heirs, executors and administrators of the Executive’s estate.
(ii) The Executive shall be covered by Company’s director and officer liability insurance on the same basis as the other directors and executive officers of Company.
(iii) The right to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section shall be enforceable by the Supplier Executive in any court of competent jurisdiction. Neither the Formulationsfailure of Company (including its board of directors, Procedures and Specifications; independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by Company (dincluding its board of directors, independent legal counsel, or its stockholders) that the Executive is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that the Executive is not so entitled. The Executive shall also be indemnified for any claim or action brought by any federal, state, local or foreign governmental agency expenses incurred in connection with the production successfully establishing right to such indemnification or sale reimbursement or advancement of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, lossesin whole or in part, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by in any such proceeding. Notwithstanding the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partyforegoing, to the extent such claim or action that Code Section 409A is attributable applicable to the use by the Supplier of the Formulationsreimbursements or expenses under this Section, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action that no exception under Code Section 409A is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereofapplicable, the Supplier following shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carriesapply: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing all expenses that are taxable and includable in income to be paid under this Section will only be paid if such expenses are incurred during Executive’s lifetime and for a ten (10) year period commencing thereafter; (ii) any amount reimbursable or paid in one year shall not affect the Supplier's comprehensive general liability coverage amount to be reimbursed or paid in another tax year; (including products liabilityiii) the Executive must provide Company with reasonable documentation of such expenses; (iv) payments for such expenses will be made in cash within thirty (30) days alter the "Supplier CGLexpenses are incurred but in no event later than the end of Executive’s taxable year following the tax year in which the expenses arc incurred; and (v) the reimbursements under this Section cannot be substituted for another benefit.
Appears in 1 contract
Samples: Executive Employment Agreement (Arrowroot Acquisition Corp.)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) Parent and Merger Sub agree that all rights to indemnification existing in favor of the current or former directors, officers and employees of the Company or any breach of any representation or warranty made by its Subsidiaries (the Supplier in or pursuant to this Agreement; (b“Indemnified Persons”) any default as provided in the performance Articles of Incorporation or Bylaws, or the articles of organization, bylaws or similar constituent documents of any of the covenants Company’s Subsidiaries or agreements made in any indemnification agreement or arrangement, as in effect as of the date of this Agreement with respect to matters occurring prior to the Effective Time shall survive the Merger and shall continue in full force and effect for a period of not less than six years after the Effective Time unless otherwise required or not permitted by Law. In addition to and not in limitation of the Supplier foregoing, the Surviving Entity shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless and (upon receipt from each such Indemnified Person of a written undertaking to reimburse the Surviving Entity for such advancement upon the determination of a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification in this Agreement; respect of such threatened or actual claim, action, suit, demand, notice, proceeding or investigation, whether civil, criminal, administrative or investigative (can “Action”)), and advance funds in respect of each of the foregoing) each Indemnified Person against any claim fees, costs or action expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Person to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (with the prior written consent of Parent) in connection with any consumer actual or any other third party threatened Action, arising out of, relating to or in connection with any action or omission occurring or alleged to have occurred whether before the Effective Time (including acts or omissions in connection with such Persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the production or sale of the Products by the Supplier (Company and including any claims acts or actions for personal injury omissions in connection with this Agreement and any products liability claims or actionthe transactions contemplated hereby), except for in any case, any claim, judgments, fines, penalties and amounts to be paid which relate to any act or omission which constitutes a violation of Law and except for other exceptions to indemnification that are required by Law. In the event of any such Action, the Surviving Entity shall reasonably cooperate with the Indemnified Person in the defense of any such Action. The Surviving Entity shall have the right to assume control of and the defense of, any Action, suit, proceeding, inquiry or investigation to which this Section 5.7(a) shall apply; provided, however, that the Supplier Surviving Entity shall have no obligation not be obligated to indemnify ENBC or pay the fees and expenses of more than one counsel (selected by a plurality of applicable Indemnified Persons) for all Indemnified Persons in any ENBC Subsidiary or ENBC Franchisee jurisdiction with respect to any claim single Action, suit, proceeding, inquiry or action investigation, unless the use of one counsel for such Indemnified Persons would present such counsel with a conflict of interest that would make such joint representation inappropriate. The Surviving Entity shall pay all reasonable fees, expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Person in successfully enforcing the indemnity and other obligations provided in this Section 5.7(a) if the Surviving Entity breached its obligations hereunder.
(b) The Company shall purchase on or prior to the extent such claim or action is attributable Effective Time, and the Surviving Entity shall maintain with reputable and financially sound carriers, tail policies to the alterationcurrent directors’ and officers’ liability insurance and fiduciaries liability insurance policies maintained on the date of this Agreement by the Company and its Subsidiaries, handling which tail policies and fiduciaries liability policies (i) shall be effective for a period from the Effective Time through and including the date six years after the Closing Date with respect to claims arising from facts or misbranding of Products after they have been delivered events that existed or occurred prior to ENBC or any ENBC Subsidiary or ENBC Franchisee or at the Effective Time and (ii) shall contain coverage that is attributable at least as protective to the use Persons covered by such existing policies (a complete and accurate copy of which has been made available to Parent) and shall in any event include nonmanagement directors Side A (DIC) coverage. The Surviving Entity shall provide copies of such policies to the past, current and future directors and officers of the Company entitled to the benefit thereof as reasonably requested by such persons from time to time. Notwithstanding the foregoing, if the coverage described above cannot be obtained or can only be obtained by paying aggregate premiums in excess of 200% of the aggregate annual amount currently paid by the Supplier Company for such coverage, the Surviving Entity shall only be required to provide as much coverage as can be obtained by paying aggregate premiums equal to 200% of the Formulationsaggregate amount currently paid by the Company for such coverage. The Surviving Entity may substitute an alternative for the tail policies that affords, Procedures in the aggregate, no less favorable protection to such officers and Specificationsdirectors; provided, that any such alternative is approved by the Company’s Board of Directors prior to the Effective Time (which approval may be withheld in its reasonable discretion).
(c) This Section 5.7 shall survive the consummation of the Merger and is intended to benefit, and shall be enforceable by each Indemnified Person (notwithstanding that such Persons are not parties to this Agreement) and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to Law, contract or otherwise.
(d) Notwithstanding anything herein to the contrary, if any claim claim, action, suit, proceeding or action brought by investigation (whether arising before, at or after the Effective Time) is made against any federal, state, local Indemnified Person on or foreign governmental agency in connection with prior to the production or sale sixth anniversary of the Products by Effective Time, the Supplier provisions of this Section 5.7 shall continue in effect until the final, non-appealable disposition of such claim, action, suit, proceeding or investigation.
(including without limitation e) In the event that the Surviving Entity, Parent or any claim of their respective successors or action assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Entity or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.7.
(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 law policy that is or regulation relating has been in existence with respect to public healththe Company or any of its Subsidiaries or their respective officers, directors and employees, it being understood and agreed that the sale of food and drugs, and the safe conduct of business)indemnification provided for in this Section 5.7 is not prior to or in substitution for any such claims under any such policies, provided, howeverthat for avoidance of doubt, that neither Parent nor the Supplier Surviving Entity shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) make any payments thereunder or in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofconnection therewith.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, to the fullest extent permitted under applicable Laws, Parent shall, and shall cause the Surviving Entity to, (i) indemnify ENBC and hold harmless an Indemnified Person against any reasonable costs or expenses (including reasonable attorneys’ fees and all ENBC Subsidiaries other reasonable costs, expenses and ENBC Franchisees forobligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and hold ENBC binding costs, as well as telecommunications, postage and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstcourier charges) paid or incurred in connection with investigating, all expensesdefending, 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, costsclaims, deficienciesdamages or liabilities, liabilities penalties and damages amounts paid in settlement (including related counsel fees) incurred all interest, assessments and other charges paid or suffered by them resulting from: (a) any breach payable in connection with or in respect of any representation thereof) in connection with any actual or warranty made threatened Proceeding, and, upon receipt by Parent of an undertaking by or on behalf of the Supplier 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, provide advancement of expenses with respect to each of the foregoing to, all Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the Organizational Documents of the Partnership and the General Partner immediately prior to the Effective Time, and ensure that the Organizational Documents of the Partnership and the General Partner or any of their respective successors or assigns, if applicable, shall, for a period of six years following the 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 Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Agreement; Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent, the Partnership and the General Partner and their respective successors and assigns.
(b) any default The Surviving Entity shall maintain in effect for a period of six years following the performance Effective Time 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 Entity may substitute therefor policies with reputable carriers of any of at least the covenants or agreements made by same coverage containing terms and conditions that are no less favorable to the Supplier in this AgreementIndemnified Persons); (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that in no event shall the Supplier Surviving Entity be required to expend pursuant to this Section 6.6(b) more than an amount per year 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 shall have obtain the maximum amount of such insurance as is available for the Maximum Amount. If the Partnership in its sole discretion elects, then, in lieu of the obligations of the Surviving Entity under this Section 6.6(b), the Partnership may (but shall be under no obligation to), prior to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee the Effective Time, purchase a “tail policy” with respect to any claim acts or action omissions occurring or alleged to have occurred prior to the extent such claim Effective Time that were committed or action is attributable alleged to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use committed by the Supplier of the Formulations, Procedures and Specificationssuch Indemnified Persons in their capacity as such; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that in no event shall the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to cost of such policy exceed the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsMaximum Amount.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) The rights of any claim or action by Indemnified Person under this Section 6.6 shall be in addition to any consumerother rights such Indemnified Person may have under the Parent Organizational Documents, governmental agency the Organizational Documents of each of the Partnership, the General Partner, the Surviving Entity or any other third partySubsidiary of Parent or the Partnership, including any claim of infringement or violation ofindemnification agreements, or conflict withthe DLLCA or DRULPA. The provisions of this Section 6.6 shall survive the consummation of the transactions contemplated by this Agreement and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Entity and/or the General Partner, or any patent of their respective successors or trade secret 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 third partyother Person, then, in each such case, to the extent such claim or action is attributable to necessary, a proper provision shall be made so that the use by successors and assigns of Parent, the Supplier Surviving Entity and/or the General Partner shall assume the obligations of Parent, the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (Surviving Entity and the right to establish the terms of any settlement) of any claim or action by any third party that could result General Partner set forth in such party having an indemnification obligation under this Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder6.6.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees Merger Agreement provides that from and after the Effective Time, to indemnify ENBC the fullest extent permitted by law, Parent shall, and shall cause O’Charley’s or the Surviving Corporation (as the case may be) to, indemnify, defend and hold harmless (and advance expenses from time to time as incurred to the fullest extent permitted by law, provided the party to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA and provides statements and reasonable documentation therefor) the present and former directors and officers of O’Charley’s, any party acting as director, officer, trustee, fiduciary, Table of Contents employee or agent of another entity or enterprise (including any O’Charley’s benefit plan) at the request of O’Charley’s (each an “Indemnified Party”) from and against any and all ENBC Subsidiaries actual, documented costs or expenses (including reasonable attorneys’ fees, expenses and ENBC Franchisees fordisbursements), and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstjudgments, all expensesfines, losses, costsclaims, deficienciesdamages, penalties, liabilities and damages (including related counsel fees) incurred amounts paid in settlement in connection with any actual or suffered threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, whether asserted or claimed prior to, at or after the Effective Time; provided that the party to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any applicable standard of conduct required by them resulting from: (a) any breach the TBCA has been met. Any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable law, O’Charley’s charter or bylaws or a written contract between an Indemnified Party and O’Charley’s or one of any representation or warranty its subsidiaries, as the case may be, shall be made by independent special legal counsel selected by the Supplier in Board of Directors of the Surviving Corporation or pursuant to this Agreement; (b) any default a committee thereof in the performance manner prescribed by Section 00-00-000 of the TBCA, the fees of which counsel shall be paid by the Surviving Corporation. Subject to the following sentence, O’Charley’s or the Surviving Corporation (or any successor), as the case may be, shall, and Parent shall cause O’Charley’s or the Surviving Corporation (or any successor), as the case may be, to purchase, at no expense to the beneficiaries, a six year extended reporting period endorsement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability insurance (a “Reporting Tail Endorsement”) and maintain this endorsement in full force and effect for its full term. To the extent purchased after the date of the Merger Agreement and prior to the Effective Time, such insurance policies shall be placed through such broker(s) and with such insurance carriers as may be specified by Parent and as are reasonably acceptable to O’Charley’s; provided that such insurance carrier has at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance. Notwithstanding the first sentence of this paragraph, but subject to the second and last sentence of this paragraph, O’Charley’s shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding any of the covenants foregoing, (i) in no event shall Parent or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may Surviving Corporation be required to enter into indemnity agreements with Authorized Recipients. ENBC (or O’Charley’s be able to) expend an aggregate amount in excess of 300% of the annual premium currently payable by O’Charley’s for that policy, it being understood that if the premiums payable for that insurance coverage exceed that amount, Parent and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is Surviving Corporation shall be obligated to make indemnity payments under any such agreement resulting from any of (or O’Charley’s may only) obtain a policy with the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated greatest coverage available for a cost equal to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofthat amount.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Offer to Purchase (Fidelity National Financial, Inc.)
Indemnification and Insurance. 11.1 2.1 The Supplier agrees Company shall, to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forthe maximum extent permitted by Applicable Law, indemnify, defend and hold ENBC harmless the LLCP Representative, any LLCP representatives participating in the Operating Committee, LLCP and all ENBC Subsidiaries the employees, partners, principals, agents, attorneys, accountants, representatives and ENBC Franchisees that purchase Products harmless Affiliates of LLCP (including LLCP Inc.) (individually, an "LLCP Party" and, collectively, the "LLCP Parties"), from and againstagainst all costs, expenses, liabilities, claims, judgments, damages and losses, including all attorneys' fees and the cost of preparation and investigation, incurred in connection with any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (collectively, "Liabilities and Costs"), arising out of or in any way related to the fact that any LLCP Party is or was a director, officer, employee, consultant or other agent of the Company or any subsidiary of the Company, is or was serving on the Operating Committee, is or was serving as an observer of the Board, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise.
2.2 Upon request by any LLCP Party, the Company shall advance (within five (5) Business Days of such request) any and all expenses, losses, costs, deficiencies, liabilities including any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all attorneys' fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier in or pursuant may be entitled to this Agreementindemnification hereunder; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that if and to the Supplier shall have no obligation extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be indemnified with respect to such matter under Applicable Law, the Company shall be entitled to be reimbursed for any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or expenses so advanced. The Company shall also indemnify each LLCP Party from and against any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party's rights under this Section 2, or under Applicable Law or the Company's charter or bylaws now or hereafter in effect relating to indemnification, or for recovery under directors' and officers' liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If, for any reason, the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may be required otherwise have at law or under any other agreement, including the Securities Purchase Agreement, and such obligations shall extend, upon the same terms, to enter into indemnity agreements with Authorized Recipientsall LLCP Parties. ENBC This Section 2 shall survive the termination of this Agreement indefinitely.
2.3 During the term of this Agreement, the Company shall maintain in force and the Supplier agree that (a) effect one or more policies of insurance covering directors and officers liability in an insured amount of not less than $10,000,000. Such insurance policies shall cover, among other things, claims asserted under federal and state securities laws and such other matters as are customary and appropriate for publicly traded companies operating in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofCompany's industry.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)
Indemnification and Insurance. 11.1 The Supplier agrees to 10.1 Licensor shall indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forhold Licensee, its Affiliates, and hold ENBC their respective employees, directors and all ENBC Subsidiaries and ENBC Franchisees that purchase Products officers, harmless from and againstagainst any liabilities or obligations, all expensesdamages, losses, costsclaims, deficienciesencumbrances, liabilities and damages costs or expenses (including related counsel attorneys’ fees) incurred (any or suffered all of the foregoing herein referred to as “Loss”) insofar as a Loss or actions in respect thereof occurs subsequent to the Effective Date arises out of a claim by them a Third Party based on or resulting from: (a) from any misrepresentation or breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the warranties, covenants or agreements made by the Supplier Licensor in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation . Licensor’s obligations to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action Licensee hereunder shall not apply to the extent any such claim or action is attributable to the alteration, handling or misbranding Loss arises out of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable based on any (a) inactions or actions of Licensee, a Sublicensee or its Affiliates for which Licensee is obligated to the use by the Supplier indemnify Licensor under this Agreement or (b) negligence or intentional misconduct of Licensee or its Affiliates.
10.2 Licensee shall indemnify and hold Licensor and its Affiliates, and their respective employees, directors and officers of any of the Formulationsforegoing, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities against any Loss insofar as such Loss or actions in respect thereof occurs subsequent to the Effective Date and damages (including related counsel fees) incurred arises out of or suffered is based upon a claim by the Supplier a Third Party based on or resulting from: from (a) any misrepresentation or breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the warranties, covenants or agreements made by ENBC Licensee in this Agreement; , (b) Licensee’s, a Sublicensee’s or its Affiliates’ development, use, marketing, manufacture, sale, distribution, promotion, handling, or storage of any Licensed Products, or (c) any product liability claim or action brought by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable Third Party due to the use of trademarksany Licensed Product sold or distributed by or on behalf of Licensee, trade names a Sublicensee, or trade dress used any Affiliate thereof in accordance with ENBC's instructions pursuant the Territory. Licensee’s obligations to Section 6.7indemnify Licensor hereunder shall not apply to the extent any such Loss arises out of or is based on any (a) inactions or actions of Licensor or its Affiliates for which Licensor is obligated to indemnify Licensee under this Agreement or (b) negligence or intentional misconduct of Licensor or its Affiliates.
11.3 10.3 No claim for indemnification hereunder shall be valid unless notice of the matter which may give rise to such claim is given in writing by the indemnitee (the “Indemnitee”) to the persons against whom indemnification may be sought (the “Indemnitor”) as soon as reasonably practicable after such Indemnitee becomes aware of such claim, provided that, notwithstanding the foregoing, the failure to notify the Indemnitor shall not relieve the Indemnitor from any liability except to the extent that such failure to notify actually adversely impacts the Indemnitor’s ability to defend such claim. Such notice shall state that the Indemnitor is required to indemnify the Indemnitee for a Loss and shall specify the amount of Loss and relevant details thereof. The parties agree Indemnitor shall notify Indemnitee no later than ten (10) days from such notice of its intention to assume the defense of any such claim. In the event the Indemnitor fails to give such notice within that each party time the Indemnitor shall no longer be entitled to assume such defense.
10.4 The Indemnitor shall at its expense, have the exclusive right right, subject to control the defense (limitations of this Section 10.4, to settle and defend, through counsel reasonably satisfactory to the right Indemnitee, any action which may be brought in connection with all matters for which indemnification is available. In such event the Indemnitee of the Loss in question and any successor thereto shall permit the Indemnitor full and free access to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, its books and that each party will records and otherwise fully cooperate with the other party Indemnitor in connection with such action; provided that this Indemnitee shall have the right fully to participate in such defense at its own expense. The defense by the Indemnitor of any such actions shall not be deemed a waiver by the Indemnitor of its right to assert a claim with respect to the responsibility of the Indemnitor with respect to the Loss in question. The Indemnitor shall not settle or compromise any claim against the Indemnitee without the prior written consent of the Indemnitee, provided that such consent shall not be unreasonably withheld. No Indemnitee shall pay or voluntarily permit the determination of any liability which is subject to any such action while the Indemnitor is negotiating the settlement thereof or contesting the matter, except with the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld. If the Indemnitor fails to give Indemnitee notice of its intention to defend any such action as provided herein, the Indemnitee involved shall have the right to assume the defense thereof with counsel of its choice, at the Indemnitor’s expense, and defend, settle or otherwise dispose of such action. With respect to any claim or such action by which the Indemnitor shall fail to promptly defend, the Indemnitor shall not thereafter question the liability of the Indemnitor hereunder to the Indemnitee for any Loss (including counsel fees and other party hereunderexpenses of defense).
11.4 ENBC 10.5 Licensee shall, at its sole cost and the Supplier acknowledge expense obtain and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) keep in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of force comprehensive general liability insurance covering the Supplier's premises and operationsinsurance, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage any applicable self-insurance coverage, with a combined single limit bodily injury, death and property damage including contractual liability and product liability coverage, of the types and in amounts which are (i) reasonable and customary in the pharmaceutical industry for companies of comparable size and activities provided that, without limitation of the foregoing, Licensee’s insurance coverage shall include comprehensive general product liability and general liability insurance each in amounts not less than $9,000,000 naming ENBC 2 million per incident and $10 million annual aggregate and name Licensor as an additional insured and containing endorsements (i) providing that insured. Licensee will provide written proof of the Supplier's comprehensive general existence of such insurance to Licensor upon request. The minimum amounts of insurance coverage required shall not be construed to create or limit Licensee’s liability coverage (including products liability) (the "Supplier CGLwith respect to its indemnification under this Agreement.
Appears in 1 contract
Samples: Development and Supply Agreement (Evofem Biosciences, Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, to the fullest extent permitted under applicable Laws, the Surviving Entity shall, and Parent shall cause the Surviving Entity to, (i) indemnify ENBC and hold harmless each Indemnified Person against any reasonable costs or expenses (including reasonable attorneys’ fees and all ENBC Subsidiaries other reasonable costs, expenses and ENBC Franchisees forobligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and hold ENBC binding costs, as well as telecommunications, postage and all ENBC Subsidiaries 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 arising out of, relating to or in connection with such Person’s status or duties as an Indemnified Person, any act or omission by such Person in its capacities as such occurring or alleged to have occurred at or prior to the Effective Time or any other matter existing at or prior to the Effective Time relating to or that may involve their status or duties as an Indemnified Person (including this Agreement and ENBC Franchisees that purchase Products harmless from the transactions and againstactions contemplated hereby), all expensesincluding any such Proceeding relating to a claim for indemnification or advancement brought by an Indemnified Person), judgments, fines, losses, costsclaims, deficienciesdamages or liabilities, liabilities penalties and damages amounts paid in settlement (including related counsel fees) incurred all interest, assessments and other charges paid or suffered by them resulting from: (a) any breach payable in connection with or in respect of any representation thereof) in connection with any such actual or warranty made threatened Proceeding, and, upon receipt by the Supplier Surviving Entity 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, provide advancement of expenses with respect to each of the foregoing to, each Indemnified Person and (ii) honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the Organizational Documents of the Partnership Parties immediately prior to the Effective Time, and ensure that the Organizational Documents of the Partnership Parties or any of their respective successors or assigns, if applicable, shall, for a period of six years following the 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 Partnership Parties than are presently set forth in such Organizational Documents. Any Indemnified Person wishing to claim indemnification or advancement of expenses pursuant to this Agreement; Section 6.6(a) shall notify Parent and the Surviving Entity (but the failure to so notify shall not relieve a party from any obligations it may have pursuant to this Section 6.6(a) except to the extent such failure materially prejudices such party’s position with respect to such claims). Any right of an Indemnified Person pursuant to this Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and Representatives against the Surviving Entity, the Partnership Parties and their respective successors and assigns.
(b) any default in the performance of any The Surviving Entity, or Parent on behalf of the covenants Surviving Entity, shall maintain in effect for a period of six years following the Effective Time the Partnership’s current directors’ and officers’ liability insurance policies covering acts or agreements made by omissions occurring at or prior to the Supplier in this Agreement; Effective Time with respect to Indemnified Persons (c) any claim provided, that the Surviving Entity, or action by any consumer or any other third party arising out Parent on behalf of the production or sale Surviving Entity, may substitute therefor policies with reputable carriers of at least the Products by same coverage containing terms and conditions that are no less favorable to the Supplier (including Indemnified Persons in any claims or actions for personal injury and any products liability claims or actionmaterial respect), ; provided, however, that in no event shall the Supplier Surviving Entity or Parent, as applicable, be required to expend pursuant to this Section 6.6(b) more than an amount per year 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 have 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 the Surviving Entity under this Section 6.6(b), Parent may (but shall be under no obligation to) (i) provide such coverage under policies maintained by Parent for its directors and officers (provided, that coverage of the Indemnified Persons under such policies shall be on terms and conditions that, taken as a whole, are no less favorable to indemnify ENBC the Indemnified Persons in any material respect than the Partnership’s current directors’ and officers’ liability insurance policies covering acts or any ENBC Subsidiary omissions occurring at or ENBC Franchisee prior to the Effective Time) or (ii) purchase (or cause to be purchased) a prepaid “tail policy” with respect to any claim acts or action omissions occurring or alleged to have occurred prior to the extent such claim Effective Time that were committed or action is attributable alleged to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use committed by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency such Indemnified Persons in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationstheir capacity as such.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) The rights of any claim or action by Indemnified Person under this Section 6.6 shall be in addition to any consumerother rights such Indemnified Person may have under the Parent Organizational Documents, governmental agency the Organizational Documents of the Partnership Parties as in effect immediately prior to the Effective Time, the Surviving Entity or any other third partySubsidiary of Parent or the Partnership, including any claim of infringement or violation ofindemnification agreements, or conflict withthe DLLCA or DRULPA. The provisions of this Section 6.6 shall survive the consummation of the transactions contemplated by this Agreement and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Entity, any patent Partnership Party or trade secret any of their respective successors or assigns (i) consolidates with or merges into any third partyother 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 such claim or action is attributable to necessary, proper provision shall be made so that the use by the Supplier successors and assigns of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereofParent, the Supplier shall indemnify ENBC Surviving Entity or such ENBC Subsidiary Partnership Party, as applicable, shall assume the obligations of Parent, the Surviving Entity or ENBC Franchisee forsuch Partnership Party, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and againstas applicable, such payment set forth in accordance with this Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof6.6.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Phillips 66)
Indemnification and Insurance. 11.1 The Supplier 8.1 LICENSEE hereby agrees to defend, hold harmless and indemnify ENBC FHCRC and its agents, directors, officers and employees (the “FHCRC INDEMNITEES”) from and against any and all ENBC Subsidiaries suits, claims, actions, demands, liabilities, expenses and/or losses, including, without limitation, reasonable legal expenses and ENBC Franchisees forattorneys’ fees (collectively “LOSSES”) resulting directly or indirectly from a claim with respect to: [***]. The foregoing indemnification obligations will not apply in the event and to the extent that such LOSSES arose as a result of [***]. FHCRC shall promptly notify LICENSEE of any such LOSSES and allow LICENSEE to handle and control the defense thereof LICENSEE shall have the sole right to settle such LOSSES, but no settlement shall be made that does not include an unconditional release without FHCRC’s prior written consent.
8.2 Except with respect to indemnification and confidentiality obligations by FHCRC and LICENSEE hereunder, in no event shall either party be liable to the other party for any indirect, special, consequential, or punitive damages-arising out of, or in connection with, this AGREEMENT or its subject matter, regardless of whether the other party knows or should know of the possibility of such damages.
8.3 Beginning at the time when any LICENSED SUBJECT MATTER is being used in human clinical trials or SOLD by LICENSEE, an AFFILIATE or a sublicensee, LICENSEE shall, at its sole cost and expense, procure and maintain commercial general liability insurance in amounts not less than [***], and hold ENBC LICENSEE shall use reasonable commercial efforts to have the FHCRC, its directors, officers, employees, contractors, representatives and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting fromagents named as additional insureds. Such commercial general liability insurance shall provide: (ai) product liability coverage; (ii) broad form contractual liability coverage for LICENSEE’s indemnification under this AGREEMENT; and (iii) coverage for litigation costs. The minimum amounts of insurance coverage required herein shall not be construed to create a limit of LICENSEE’s liability with respect to its indemnification under this AGREEMENT. The insurance requirements under this Section 8.3 may be satisfied by self insurance commensurate with reasonable standards of the industry.
8.4 LICENSEE shall provide FHCRC with written evidence of such insurance within [***] of its procurement. Additionally, LICENSEE shall provide FHCRC with written notice of at least [***] prior to the cancellation, non-renewal or material change in such insurance. If LICENSEE does not provide FHCRC with written evidence of such insurance, LICENSEE may elect to self-insure all or part of the limits described above provided that such self-insurance program is acceptable to FHCRC.
8.5 LICENSEE shall maintain such commercial general liability insurance beyond the expiration or termination of this AGREEMENT during: (i) the period that any breach of any representation or warranty made by the Supplier in or LICENSED SUBJECT MATTER developed pursuant to this AgreementAGREEMENT is being commercially distributed or sold by LICENSEE or by a sublicensee or agent of LICENSEE; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (bii) in the event the Supplier is obligated to make indemnity payments under any [***] period immediately after such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofperiod.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Patent and Technology License Agreement (Juno Therapeutics, Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) Parent shall not, for a period of six years after the Closing, take any breach of action to unilaterally alter or impair any representation exculpatory or warranty made by the Supplier in or pursuant to this Agreement; (b) any default indemnification provisions now existing in the performance Certificate of any Incorporation or Bylaws of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer Company or any other third party arising out contract or agreement between or among the Company and its current or former officer or directors, for the benefit of any individual who served as a director or officer of the production or sale of the Products by the Supplier (including Company at any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action time prior to the extent such claim or action is attributable to the alterationClosing, handling or misbranding of Products after they have been delivered to ENBC or except for any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of changes which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements conform with Authorized Recipients. ENBC changes in applicable law and any changes which do not affect the Supplier agree that (a) in application of such provisions to acts or omissions of such individuals prior to the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and Closing.
(b) Subject to applicable laws, from and after the Closing, Parent agrees that it will cause the Surviving Corporation to indemnify and hold harmless each Indemnified Executive against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities or amounts paid in settlement 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 event Closing based directly or indirectly on, or arising directly or indirectly out of, the Supplier fact that such Indemnified Executive is obligated to make indemnity payments under any such agreement resulting from any an officer or director of the matters described in clauses Company, whether asserted or claimed prior to, at or after the Closing, to the fullest extent permitted under Delaware law (a) through (dand Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under Delaware law, provided the Indemnified Executive to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Executive is not entitled to indemnification), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 (c) The Supplier represents Company will use Reasonable Best Efforts to maintain in full force and warrants effect through the Closing Date all material insurance policies applicable to the Company and its Subsidiaries and their respective properties and assets in effect on the date hereof. If and as requested by Parent, the Company will use its Reasonable Best Efforts to cause the Company’s insurers to waive any provisions in such insurance policies that it carries: (a) policies would allow the insurer to terminate or adversely modify coverage upon consummation of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLMerger.
Appears in 1 contract
Samples: Merger Agreement (Emeritus Corp\wa\)
Indemnification and Insurance. 11.1 The Supplier agrees to 22.1 Distributor does hereby indemnify ENBC and hold harmless ICI, its affiliates and the Rights Holder and its affiliates from and against any and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costsliability, deficiencies, liabilities damages and damages expenses (including related counsel feesreasonable attorneys fees and expenses) incurred which it may incur or suffered be obligated to pay as a result of or in defending any action, claim or proceeding against any of them, for or by them resulting from: (a) any breach reason of any representation acts or warranty made omissions committed by the Supplier in Distributor or pursuant to this Agreement; (b) any default in the performance of any of the covenants its servants, agents or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency employees in connection with the production or sale Distributor's performance of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party . Distributor shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) immediately notify ICI of any claim or action by law suit seeking damages in excess of $100,000 Canadian. The provisions of this Section and Distributor's obligations hereunder shall survive the expiration or earlier termination of this Agreement. In the event that a judgment, levy, attachment or other seizure is entered against ICI, the Rights Holder or any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of their respective affiliates arising from any claim as to which indemnification is provided hereunder, Distributor shall promptly post the necessary bond to prevent execution against any property of ICI, the Rights Holder or action any of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereundertheir affiliates.
11.4 ENBC 22.2 Distributor shall procure and the Supplier acknowledge maintain in full force and agree that ENBCeffect, ENBC Subsidiaries at its sole cost and ENBC Franchiseesexpense, on the one handat all times during which products are being sold, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's a product liability insurance that comply policy with all state and federal laws, and (b) policies of comprehensive general liability insurance covering respect to the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, Products with a combined single limit of liability of not less than $9,000,000 naming ENBC 1,000,000. Such insurance policy shall include ICI as an additional insured thereunder and containing endorsements shall provide for at least thirty (i30) providing that days prior written notice to ICI of the Supplier's comprehensive general cancellation or substantial modification thereof. Such insurance may be obtained by Distributor in conjunction with a policy of products liability coverage (including insurance which covers products liability) (other than the "Supplier CGLProducts. Distributor will deliver a certificate of such insurance to ICI promptly upon issuance of said insurance policy and shall, from time to time upon reasonable request by ICI, promptly furnish to ICI evidence of the maintenance of said insurance policy. Likewise, without limitation of its indemnification obligations under this Agreement, ICI shall procure and maintain in full force and effect, at its sole cost and expense, at all times during which Products are being sold, a product liability insurance policy with respect to potential liability under this Agreement with a limit of liability of not less than $1,000,000.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the obligations of NSC which exist prior to the date hereof to indemnify ENBC NSC's directors and all ENBC Subsidiaries officers. The Certificate of Incorporation and ENBC Franchisees forBylaws of the Surviving Corporation will contain provisions with respect to indemnification and elimination of liability for monetary damages, which provisions will not be amended, repealed or otherwise modified for a period of one year 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 NSC, 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 Bylaws, indemnify and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstharmless, all expenseseach director or officer of NSC (collectively, the "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages (including related counsel fees) incurred amounts paid in settlement in connection with any claim, action, suit, proceeding or suffered by them resulting from: (a) any breach of any representation investigation, whether civil, criminal, administrative or warranty made by investigative, to the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party extent arising out of or pertaining to any action or omission in his or her capacity as a director, officer, employee or agent of NSC occurring. prior to the production Effective Time (including without limitation actions or sale omissions relating to the Merger) for a period of one year after the Products 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 Supplier Indemnified Parties for any period after the Effective Time will be reasonably satisfactory to the Surviving Corporation, (including 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 claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that the Supplier shall have no obligation to indemnify ENBC or Surviving Corporation will not be liable for any ENBC Subsidiary or ENBC Franchisee with respect to settlement effected without its prior written consent; and provided, further, that, in the event that any claim or action claims for indemnification are asserted or made within such one- year period, all rights to indemnification in respect of any such .claim or claims will continue until the extent disposition of any and all such claim or action is attributable to claims.
(c) NSC shall negotiate and secure a "tail" on its existing Directors, Officers and Company Liability insurance policies for a period of one year, the alteration, handling or misbranding cost of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use which shall be paid by the Supplier of the Formulations, Procedures and Specifications; or Azurel.
(d) This Section 5.7 will survive any claim or action brought by any federal, state, local or foreign governmental agency in connection with termination of this Agreement and the production or sale consummation of the Products by Merger at the Supplier (including without limitation any claim or action under any law or regulation relating Effective Time, is intended to public healthbenefit NSC, the sale of food Surviving Corporation and drugsthe Indemnified Parties, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier will be binding on all successors and assigns of the Formulations, Procedures and SpecificationsSurviving Corporation.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Proteonomix, Inc.)
Indemnification and Insurance. 11.1 The Supplier (a) TOTAL agrees to indemnify ENBC and hold harmless Amyris from any and all ENBC Subsidiaries and ENBC Franchisees forliability, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstloss (including attorneys’ fees), all expensesor damage they may suffer as the result of claims, lossesdemands, costs, deficienciesor judgments against them (collectively, liabilities and damages “Damages”) to the extent arising out of (i) any actions or omissions of TOTAL or its subcontractors with respect to the performance of the Services, (ii) gross negligence or willful misconduct on the part of TOTAL or its subcontractors with respect to the performance of the Services, (iii) actual or alleged infringement or misappropriation of a third party’s intellectual property through use of material (including related counsel feescells and strains) incurred provided by or suffered by them resulting from: on behalf of TOTAL or its Affiliates to Amyris for use in the Services, or (aiv) any a breach of any representation applicable federal, state or warranty made local law by the Supplier in TOTAL or pursuant to this Agreement; its subcontractors.
(b) Amyris agrees to indemnify and hold harmless TOTAL from any default in and all Damages to the extent arising out of any (i) actions or omissions of Amyris or its subcontractors with respect to the performance of any the Services, (ii) gross negligence or willful misconduct on the part of Amyris or its subcontractors with respect to the performance of the covenants Services or agreements made (iii) a breach of any applicable federal, state or local law by the Supplier in this Agreement; Amyris or its subcontractors.
(c) For the avoidance of doubt, this Section does not cover or address any liability that could be an indemnifiable claim under the Sublease.
(d) Each Party’s agreement to indemnify and hold the other harmless is conditioned on the indemnified Party (i) providing written notice to the indemnifying Party of any claim, demand or action by any consumer or any other third party (“Claim”) arising out of the production indemnified activities within thirty (30) days after the indemnified Party has knowledge of such Claim; (ii) permitting the indemnifying Party to assume full responsibility to investigate, prepare for and defend against any such Claim; (iii) assisting the indemnifying Party, at the indemnifying Party’s reasonable expense, in the investigation of, preparation for and defense of any such Claim; and (iv) not compromising or sale settling such Claim without the indemnifying Party’s written consent. The indemnifying Party shall not settle a Claim in any manner that admits fault on behalf of the Products by indemnified Party or imposes injunctive relief on the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent indemnified Party without such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsParty’s prior written consent.
11.2 ENBC agrees to indemnify (e) Each of TOTAL and Amyris shall maintain the Supplier for, following insurance coverage provided by an admitted insurer with an AM Best rating of A and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages a financial size rating of VII or greater:
(i) Workers’ Compensation insurance including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used Occupational Disease coverage in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any laws of the matters described in clauses (a) through (d)federal, inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal lawslocal governments having jurisdiction(s) over Emeryville, CA and Employers’ Liability Insurance (bincluding Borrowed Servant and Voluntary Compensation) policies with a limit of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, not less than $1,000,000 for each accident;
(ii) Commercial General Liability Insurance with a combined single limit of $9,000,000 naming ENBC 1,000,000 per occurrence and shall include, but not be limited to, coverage for death, bodily injury and property damage, and products-completed operations coverage applicable to bodily injury, sickness or death and for loss of or damage to property;
(iii) Automobile Liability Coverage for owned, non-owned, hired and all other vehicles used by Company, its employees and agents with a combined single limit of $1,000,000 applicable to bodily injury, sickness or death of any person, or loss of or damage to property for any one occurrence;
(iv) Umbrella liability insurance with a limit of $5,000,000 per occurrence providing liability insurance excess of the coverages listed above; and
(v) All policies shall provide a waiver of subrogation in favor of the other Party. The Commercial General Liability policy shall name the other Party as an additional insured and containing endorsements (i) providing that solely for the Supplier's comprehensive general liability coverage (including products liability) (liabilities assumed in this agreement. Each Party shall be notified of material change or cancellation of insurance according to the "Supplier CGLpolicy provisions. Upon request, the Parties shall provide certificates of insurance evidencing compliance with this agreement.
Appears in 1 contract
Indemnification and Insurance. 11.1 2.1 The Supplier agrees Company shall, to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forthe maximum extent permitted by law, indemnify, defend and hold ENBC harmless the LLCP Representative, any LLCP representative on the Operating Committee, LLCP and all ENBC Subsidiaries the employees, partners, principals, agents, attorneys, accountants, representatives and ENBC Franchisees that purchase Products harmless Affiliates of LLCP (including, without limitation, LLCP Inc.) (collectively, the "LLCP Parties"), from and againstagainst all costs, expenses, ------------ liabilities, claims, judgments, damages and losses, including, without limitation, all attorneys' fees and the cost of any investigation and preparation incurred in connection therewith, incurred in connection with any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (collectively, "Liabilities and Costs"), arising --------------------- out of or in any way related to the fact that any LLCP Party is or was a director, officer, employee or other agent of the Company or any subsidiary of the Company, is or was serving on the Operating Committee, is or was serving as an observer of the Board, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise.
2.2 Upon request by any LLCP Party, the Company, shall advance (within five (5) Business Days of such request) any and all expenses, lossesincluding, costswithout limitation, deficiencies, liabilities any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all attorneys' fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier in or pursuant may be entitled to this Agreementindemnification hereunder; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that if and -------- ------- to the Supplier shall have no obligation extent that a court of competent jurisdiction finally determines that such LLCP Party is not permitted to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be indemnified with respect to such matter under applicable law, the Company shall be entitled to be reimbursed for any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or expenses so advanced. The Company shall also indemnify each LLCP Party from and against any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party's rights under this Section 2, or --------- under Applicable Law or the Company's charter or bylaws now or hereafter in effect relating to indemnification, or for recovery under directors' and officers' liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If, for any reason, the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC otherwise have at law or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d)other agreement, inclusiveincluding, of Section 11.1 hereofwithout limitation, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee forSecurities Purchase Agreement, and hold ENBC such obligations shall extend, upon the same terms, to all LLCP Parties. This Section 2 shall survive indefinitely the termination of this Agreement. ---------
2.3 At any time that an LLCP Representative is serving on the Board, the Company shall maintain in force and such ENBC Subsidiary effect one or ENBC Franchisee harmless from more directors and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's officers liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability providing at least $5,000,000 in insurance covering the Supplier's premises and operationscoverage for director liability, including premises coverage for claims under federal and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLstate securities laws.
Appears in 1 contract
Indemnification and Insurance. 11.1 (a) The Supplier Company agrees to that it will indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, to the fullest extent permitted by the General Corporation Law of the State of Delaware (the “DGCL”) (and all ENBC Subsidiaries and ENBC Franchisees the Company shall also advance expenses as incurred to the fullest extent permitted under the DGCL, provided that purchase Products harmless from and againstIndemnitee undertakes to repay such advances if it is ultimately determined that Indemnitee is not entitled to indemnification) Indemnitee against any costs or expenses (including reasonable attorneys’ fees), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages or liabilities (collectively, liabilities and damages (including related counsel fees“Costs”) incurred in connection with any claim, action, suit, proceeding or suffered investigation, whether civil, criminal, administrative or investigative (collectively, “Action”), arising out of or related to Indemnitee’s service as a director of the Company or services performed by them resulting from: (a) any breach Indemnitee at the request of any representation or warranty made the Company, including in connection with the transactions contemplated by the Supplier in Tender Offer or pursuant to this Agreement; the Merger.
(b) any default The Company shall, prior to or as of the date and time at which the Merger becomes effective under Delaware law (the “Effective Time”), obtain and fully pay the premium for the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Effective Time, from an insurance carrier with a comparable or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance (“D&O Insurance”) with coverage of not less than the coverage under, and with such other terms that are at least as favorable in the performance of any of aggregate to, the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee Company’s existing policies with respect to any claim actual or action to the extent such claim or action is attributable to the alterationalleged error, handling or misbranding misstatement, misleading statement, act, omission, neglect, breach of Products after they have been delivered to ENBC duty or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use matter claimed against Indemnitee by the Supplier reason of Indemnitee serving a director of the Formulations, Procedures and Specifications; Company or performing services at the request of the Company (d) any claim or action brought by any federal, state, local or foreign governmental agency including in connection with the production transactions contemplated by the Tender Offer or sale the Merger). If the Company for any reason fails to obtain such “tail” insurance policies as of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthEffective Time, the sale Company shall continue to maintain in effect for a period of food at least six years from and drugs, and after the safe conduct of business), provided, however, that Effective Time the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier D&O Insurance in place as of the Formulationsdate of this Agreement, Procedures or purchase comparable D&O Insurance for such six-year period, in each case, with terms, conditions, retentions and Specifications.
11.2 ENBC limits of liability that are at least as favorable to Indemnitee as those provided in the Company’s existing policies as of the date of this Agreement. If for any reason the Effective Time does not occur, the Company agrees to indemnify maintain the Supplier for, and to hold D&O Insurance in place as of the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach date of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default , or purchase comparable D&O Insurance, in each case, with terms, conditions, retentions and limits of liability that are at least as favorable to Indemnitee as those provided in the performance of any Company’s existing policies as of the covenants or agreements made by ENBC in date of this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Indemnification Agreement (Hearst Argyle Television Inc)
Indemnification and Insurance. 11.1 The Supplier agrees to To the fullest extent permissible under Maryland law, the Company shall indemnify ENBC and hold harmless Executive for and against any and all ENBC Subsidiaries losses, expenses (including those incurred in enforcing Executive’s rights under this Section 10), damages, liabilities, judgments, fines, penalties, taxes, amounts paid or payable in settlement (including interest), assessments and ENBC Franchisees forall other charges paid or payable in connection with any threatened, pending or completed action, suit, proceeding or other dispute resolution mechanism, whether civil, criminal, administrative, arbitrative, investigative or other, or any inquiry, hearing or investigation that may reasonably be expected to lead to any of the foregoing, which Executive may incur or suffer or for which Executive may HB: 0000-0000-0000.9 be liable by reason of or arising out of any event, act or occurrence relating to Executive’s employment with the Company or any of its Affiliates or any other entity for which Executive provided services at the direction or request of the Company or any of its Affiliates (“Indemnified Losses”), and hold ENBC at Executive’s election, shall defend Executive in connection with any of the foregoing. The Company shall at all times maintain reasonable and customary policies of insurance by reputable insurers under which Executive is a primary beneficiary covering all ENBC Subsidiaries Indemnified Losses, and ENBC Franchisees that purchase Products harmless from shall, upon Executive’s written request, provide copies of such insurance policies and againstendorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, all expenses, losses, costs, deficiencies, liabilities when and damages (including related counsel fees) to the extent actually incurred or suffered by them resulting from: (a) Executive. In connection with any breach request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Company an undertaking to repay any representation amounts paid, advanced, or warranty made reimbursed by the Supplier in or pursuant Company for such Indemnified Losses to this Agreement; (b) any default in the performance extent that it is ultimately determined, following the final disposition of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, howeversuch claim, that the Supplier Executive is not entitled to indemnification hereunder. The foregoing indemnification, insurance and adverse obligations shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect not apply to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use brought by the Supplier of the Formulations, Procedures and Specifications; Company or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action its Affiliates to enforce its rights under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)
Indemnification and Insurance. 11.1 The Supplier 9.1 Subject to Clause 7.3 each party shall notify the other of any claim, lawsuit or other proceeding related to PRODUCT, PATENT RIGHTS, MATERIAL, INVENTION or INFORMATION. BTI agrees to that it will defend, indemnify ENBC and hold harmless SCS and its employees, officers, and agents and each of them (the "Indemnified Parties") from and against any and all ENBC Subsidiaries third party claims, causes of action and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages costs (including related counsel attorney's fees) incurred or suffered by them resulting from: (a) any breach of any representation nature made or warranty made by lawsuits or other proceedings filed or otherwise instituted against the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party Indemnified Parties arising out of the production design, manufacture, sale or sale use of the Products PRODUCT by the Supplier (including any claims BTI or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action its licensees except to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures negligence or willful misconduct of an Indemnified Party. BTI will also assume responsibility for all costs and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with expenses related to such claims and lawsuits for which it is obligated to Indemnify the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or Indemnified Parties pursuant to this Agreement; (b) any default in Paragraph 9.1 including, but not limited to, the performance payment of all attorney's fees and costs of litigation or other defenses. SCS shall promptly notify BTI of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party BTI shall have the exclusive right to control the defense (and the right to establish the terms defense, settlement or compromise, of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderclaim.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in 9.2 In the event ENBC such insurance is available at commercially reasonable rates, BTI will, at all times following first commercial sale of PRODUCT, maintain and keep current in respect of manufacture and sale of PRODUCT, product liability insurance obtained from a reputable insurer (or any ENBC Subsidiary or ENBC Franchisee is obligated an equivalent program of self-insurance) and shall make available to make indemnity payments under any SCS such agreement resulting from any of the matters described in clauses (a) through (d)policy for inspection, inclusiveupon request, of Section 11.1 hereof, the Supplier by SCS.
9.3 BTI shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, use reasonable efforts to manufacture and hold ENBC sell PRODUCT and such ENBC Subsidiary or ENBC Franchisee harmless from use reasonable efforts to ensure that its AFFILIATES and against, such payment SUBLICENSEES manufacture and sell PRODUCT in accordance with Section 11.1 hereof, and (b) in the event regulatory requirements set forth by the Supplier country where the particular PRODUCT is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofbe sold.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier (a) From and after the Effective Time, subject to applicable law, Crescent Bank agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and all ENBC Subsidiaries former director and ENBC Franchisees officer of VantageSouth and each officer or employee of VantageSouth that purchase Products harmless from and againstis serving or has served as a director or officer of another entity expressly at the request or direction of VantageSouth (each, all expensesan “Indemnified Party”), against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, amounts paid in settlement, losses, costsclaims, deficienciesdamages or liabilities incurred in connection with any claim, liabilities and damages action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to which such person was, is, or is threatened to be made a named defendant or respondent because such person is or was such a director or officer, arising out of matters existing or occurring at or prior to the Effective Time (including related counsel fees) incurred the transactions contemplated by this Agreement), whether asserted or suffered by them resulting from: (a) any breach claimed prior to, at or after the Effective Time, as they are from time to time incurred, in each case to the fullest extent such person would have been indemnified or have the right to advancement of any representation or warranty made by the Supplier in or expenses pursuant to VantageSouth’s Articles of Incorporation and bylaws as in effect on the date of this Agreement; .
(b) any default in the performance Any Indemnified Party wishing to claim indemnification under Section 5.3(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Crescent Bank thereof, but the failure to so notify shall not relieve Crescent Bank of the covenants or agreements made by the Supplier in this Agreement; any liability it may have hereunder to such Indemnified Party if such failure does not materially and substantially prejudice Crescent Bank.
(c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee The Parties will collaborate with respect to any claim purchasing and maintaining appropriate directors' and officers' liability insurance coverage after the Effective Time for the benefit of directors and officers of VantageSouth who are currently covered by such insurance; provided that Crescent Parties shall not be obligated to make aggregate annual premium payments for in respect of such policy or action to the extent policies (or coverage replacing such claim policy or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier policies) which exceed 300% of the Formulations, Procedures and Specifications; annual premium payments on VantageSouth’s current policy or policies in effect as of the date of this Agreement.
(d) In the event Crescent Bank or any claim of its successors or action brought by assigns (i) consolidates with or merges into any federalother 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 substantially all of its properties and assets to any person or entity, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugsthen, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent in each such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partycase, to the extent such claim or action is attributable necessary, proper provision shall be made so that the successors and assigns of Crescent Bank assume the obligations set forth in this Section 5.3.
(e) The provisions of this Section 5.3 are intended to be for the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation benefit of, and shall be enforceable by, each Indemnified Party and his or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7her representatives.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Crescent Financial Bancshares, Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) Licensee shall indemnify, defend and hold harmless HJF and its current and former directors, board members, trustees, officers, employees, and agents and their respective successors, heirs and assigns (collectively, the “Indemnitees”), from and against any and all ENBC Subsidiaries and ENBC Franchisees forthird party claims, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, lossesliabilities, costs, expenses, damages, deficiencies, liabilities and damages losses or obligations of any kind or nature (including reasonable attorneys’ fees and other costs and expenses of litigation) (collectively “Claims”) based upon, arising out of, or otherwise relating to Claims that arise out of or are related counsel feesto (i) incurred Licensee’s manufacture and sale of Licensed Product, (ii) the failure of Licensee to comply with all laws, rules and/or regulations of any jurisdiction applicable to this Agreement; or suffered by them resulting from: (aiii) any the breach of any representation or warranty made by the Supplier Licensee in or this Agreement. HJF will promptly notify Licensee within a reasonable time after it becomes aware of any Claim that may be subject to indemnification pursuant to this Agreement; (b) any default in Section and will cooperate with and authorize Licensee to carry out the performance sole management and defense of any of such Claim. In the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation event HJF decides to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency employ its own separate counsel in connection with the production or sale sole management and defense by Licensee of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthClaim, the sale employ of food such counsel shall be at HJF’s sole expense. HJF will not compromise or settle any claim, action or proceeding subject to indemnification pursuant to this Section without the prior written approval of Licensee.
(b) HJF shall indemnify, defend and drugshold harmless the Licensee and its current and former directors, board members, trustees, officers, employees, and agents and their respective successors, heirs and assigns (collectively, the safe conduct of business“Licensee Indemnitees”), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and againstagainst any and all third party claims, all expenses, lossesliabilities, costs, expenses, damages, deficiencies, liabilities and damages losses or obligations of any kind or nature (including reasonable attorneys’ fees and other costs and expenses of litigation) (collectively “Claims”) based upon, arising out of, or otherwise relating to Claims that arise out of or are related counsel fees) incurred or suffered by to the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC HJF in or this Agreement. Licensee will promptly notify HJF within a reasonable time after it becomes aware of any Claim that may be subject to indemnification pursuant to this Agreement; (b) any default Section and will cooperate with and authorize HJF to carry out the sole management and defense of such Claim. In the event Licensee decides to employ its own separate counsel in connection with the performance of any sole management and defense by HJF of the covenants Claim, the employ of such counsel shall be at Licensee’s sole expense. Licensee will not compromise or agreements made by ENBC in settle any claim, action or proceeding subject to indemnification pursuant to this Agreement; Section without the prior written approval of HJF.
(c) any claim or action by any consumerThe indemnifying Party shall, governmental agency or any other third partyat its own expense, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, provide attorneys reasonably acceptable to the extent such claim other to defend against any actions brought or action is attributable filed with respect to the use by the Supplier subject of the Formulationsindemnity contained herein, Procedures and Specifications whether or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or not such actions are rightfully brought.
(d) Beginning at the time any claim such product, process or action service is being commercially distributed or sold (other than for the purpose of obtaining regulatory approvals) by Licensee or by any third party alleging infringement sublicensee or violation ofagent of Licensee, Licensee shall, at its sole cost and expense, procure and maintain commercial general liability insurance in amounts not less than $[***] per incident and $[***] annual aggregate and naming the Indemnitees as additional insureds. During clinical trials of any such product, process, or conflict withservice, any trademarksLicensee shall, trade names at its sole cost and expense, procure and maintain commercial general liability insurance in such equal or trade dresslesser amount as HJF 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 in excess of $[***]annual aggregate) such self-insurance program must be acceptable to HJF in its sole discretion. The minimum amounts of insurance coverage required shall not be construed to create a limitation of Licensee’s liability with respect to its indemnification under this Agreement.
(e) Licensee shall provide HJF with written evidence of such insurance upon request of HJF. Licensee shall provide HJF with written notice at least [***] days prior to the extent cancellation, non-renewal, or material change in such claim or action is attributable to the use of trademarksinsurance; if Licensee does not obtain replacement insurance providing comparable coverage within such [***] day period, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party HJF shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment terminate this Agreement in accordance with Section 11.1 hereof, and 10.2 (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (dc), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (af) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive Licensee shall maintain such commercial general liability insurance covering beyond the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit expiration or termination of $9,000,000 naming ENBC as an additional insured and containing endorsements this Agreement (i) providing during 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 period after the Supplier's comprehensive general liability coverage period referred to in (including products liabilityf)(i) (the "Supplier CGLabove, which period in no event shall be less than [***] years.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees (a) From the date hereof, DPSG shall, to the fullest extent permissible by applicable Law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of DPSG or of a DPSG Subsidiary (collectively, the “Indemnified Parties”) with respect to all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstclaims, all expensesliabilities, losses, costsdamages, deficienciesjudgments, liabilities and damages fines, penalties, costs (including related counsel feesamounts paid in settlement or compromise) incurred and expenses (including fees and expenses of legal counsel) in connection with any Legal Proceeding (whether civil, criminal, administrative or suffered investigative), whenever asserted, based on or arising out of, in whole or in part, (i) the fact that an Indemnified Party is or was a director, officer, employee or agent of DPSG or any DPSG Subsidiary or (ii) acts or omissions by them resulting from: an Indemnified Party in the Indemnified Party’s capacity as a director, officer, employee or agent of DPSG or any DPSG Subsidiary or taken at the request of DPSG or any DPSG Subsidiary (aincluding in connection with serving at the request of DPSG or any DPSG Subsidiary as a representative of another Person (including any employee benefit plan)), in each case under clause (i) or (ii), at, or at any breach time prior to, the Effective Time (including any Legal Proceeding 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 representation Indemnified Party). Without limiting the foregoing, DPSG, from and for a period of six (6) years after the Effective Time, shall, unless otherwise required by Law, not amend or warranty made modify its certificate of incorporation or bylaws to contain any provisions that are less favorable to the Indemnified Parties or the employees and agents of DPSG and the DPSG Subsidiaries with respect to limitation of liabilities of directors, officers, employees and agents and indemnification and advancement of expenses than are set forth as of the date of this Agreement in the DPSG Charter, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnified Parties or the employees and agents of DPSG and the DPSG Subsidiaries. In addition, from the date hereof, DPSG shall without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including fees and expenses of legal counsel) of any Indemnified Party incurred by any Indemnified Party in connection with any Legal Proceeding (including in connection with enforcing the Supplier indemnity and other obligations referred to in or pursuant this Section 7.09) as incurred to this Agreement; the fullest extent permitted under applicable Law.
(b) any default in DPSG (whether prior to or after the performance Effective Time) shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Legal Proceeding relating to any acts or omissions covered under this Section 7.09 (each, a “Claim”) for which indemnification could be sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party such Indemnified Party from all liability arising out of the production such Claim or sale of the Products by the Supplier (including any claims such Indemnified Party otherwise consents in writing to such settlement, compromise or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, consent. DPSG and the safe conduct of business), provided, however, that the Supplier Indemnified Parties shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim Claim and shall provide access to properties and individuals as reasonably requested and furnish or action cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) For the six-year period commencing immediately after the Effective Time, DPSG shall maintain in effect a directors’ and officers’ liability insurance with an insurance carrier with the same or better credit rating as DPSG’s insurance carrier as of the date hereof covering acts or omissions occurring at or prior to the Effective Time with respect to those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by DPSG directors’ and officers’ liability insurance policies on terms, conditions, retentions and limits of liability that are at least as favorable as DPSG’s existing policies in effect on the date of this Agreement. For the benefit of the Indemnified Parties, DPSG shall be permitted, prior to the Effective Time, to obtain and fully pay the premium, subject to the maximum annual premium referred to in the first proviso to this Section 7.09(c), for the extension of (i) the directors’ and officers’ liability coverage of DPSG’s existing directors’ and officers’ insurance policies and (ii) DPSG’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of six years from and after the Effective Time that shall be from an insurance carrier with the same or better credit rating as DPSG’s insurance carrier as of the date hereof with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable as DPSG’s existing policies with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement, the Merger or the other party hereunder.
11.4 ENBC and Transactions). Notwithstanding anything to the Supplier acknowledge and agree that ENBCcontrary contained herein, ENBC Subsidiaries and ENBC Franchisees, on in no event shall Maple Parent or DPSG after the one hand, and the Supplier, on the other hand, may Effective Time be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that expend for any policies contemplated by this clause (ac) an annual premium amount in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any excess of 350% of the matters described annual premiums currently paid by DPSG for such insurance; and, provided, further that if the annual premiums of such insurance coverage exceed such amount, DPSG after the Effective Time shall obtain a policy with the greatest coverage available for a cost not exceeding such amount. If such prepaid D&O Insurance has been obtained by DPSG prior to the Effective Time, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 7.09(c) and DPSG shall use its reasonable best efforts to cause such D&O Insurance to be maintained in clauses (a) through full force and effect, for its full term, and to honor all of its obligations thereunder.
(d), inclusive, ) The provisions of this Section 11.1 hereof, 7.09 will survive the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, Effective Time and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements are (i) providing intended to be for the benefit of, and will be enforceable by, each Indemnified Party and his or her heirs and (ii) in addition to, and not substitution for, any other rights to indemnification or contribution that such Indemnified Party may have under other contracts. After the Effective Time, the obligations of DPSG under this Section 7.09 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party to whom this Section 7.09 applies unless (A) such termination or modification is required by applicable Law or (B) the affected Indemnified Party shall have consented in writing to such termination or modification.
(e) If DPSG (as the Surviving Corporation) after the Effective Time, Maple Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision will be made so that the Supplier's comprehensive general liability coverage (including products liability) (successors and assigns of DPSG or Maple Parent, as applicable, will assume the "Supplier CGLobligations set forth in this Section 7.09.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees PGIC will, to the maximum extent permitted by law, defend, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless the Employee and all ENBC Subsidiaries the Employee’s heirs, estate, executors and ENBC Franchisees that purchase Products harmless from and against, all expensesadministrators against any costs, losses, claims, suits, proceedings, damages or liabilities to which the Employee may become subject which arise out of, are based upon or relate to the Employee’s employment by PGIC (and any predecessor company to PGIC), or the Employee’s service as an officer or member of the Board of Directors of PGIC (or any predecessor company of PGIC) or any Affiliate, including without limitation reimbursement for any legal or other expenses reasonably incurred by the Employee in connection with investigation and defending against any such costs, deficiencieslosses, liabilities claims, suits, proceedings, damages or liabilities. In no event shall the amount of indemnification provided directly by PGIC to the Employee exceed $1,000,000 in the aggregate. Any indemnification provided to the Employee by third parties shall be excluded from this amount, and damages (including related counsel fees) incurred shall not count against it. Moreover, PGIC reserves the right to deny any reimbursement or suffered coverage claim presented by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or Employee to PGIC pursuant to this Agreement; paragraph if the Employee has violated any material term of this Agreement at any time. PGIC may maintain directors and officers liability insurance in commercially reasonable amounts (b) any default as reasonably determined by the Board), and, in the performance of any of event such insurance is obtained, the covenants or agreements made by Employee shall be covered under such insurance to the Supplier in this Agreementsame extent as other senior management employees (and directors, with respect to the Employee’s role as a director, as may be applicable); (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier PGIC shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may not be required to enter into indemnity agreements with Authorized Recipients. ENBC and maintain such insurance coverage unless the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants Board determines that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLis obtainable at reasonable cost.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees A. Landlord, its agents, servants, employees, invitees, or contractors (each an “Indemnified Party”) shall not be liable to indemnify ENBC Tenant and Tenant hereby waives all ENBC Subsidiaries claims against each Indemnified Party for any injury to or death of any person or damage to or destruction of property in or about the Leased Premises or the Building by or from any cause whatsoever, including without limitation, gas, fire, oil, electricity, or leakage of any character from the roof, walls, basement, or other portion of the Leased Premises or the Building, but excluding, however, the gross negligence or willful misconduct of any Indemnified Party of which gross negligence or willful misconduct Landlord has knowledge and ENBC Franchisees forreasonable time to correct. Landlord shall indemnify, defend, and hold ENBC harmless Tenant, its agents, servants, employees, invitees, or contractors (“Tenant Indemnified Parties”), from and against any and all ENBC Subsidiaries expenses, including reasonable attorneys’ fees, imposed on Tenant Indemnified Parties, arising out of any injury or death of any person or damage to or destruction of property occurring in or on the Leased Premises caused by the Landlord’s gross negligence or willful misconduct. Except as to injury to persons or damage to property the principal cause of which is the gross negligence or willful misconduct of an Indemnified Party, Tenant shall indemnify, defend, and ENBC Franchisees that purchase Products hold each Indemnified Party harmless from and against, against any and all expenses, lossesincluding reasonable attorneys’ fees, costsin connection therewith, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of any injury to or death of any person or damage to or destruction of property occurring in, on, or about the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action)Leased Premises, provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect part thereof, from any cause whatsoever. Landlord agrees to any claim or action to the extent such claim or action is attributable to the alterationindemnify, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugsdefend, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier each Tenant Indemnified Party harmless from and againstagainst any claim, loss, or expense arising out of injury, death or property loss or damage occurring in the common areas of the Building, except where the principal cause of such injury, death, or property loss or damage is the gross negligence or willful misconduct of a Tenant Indemnified Party. Tenant shall indemnify, defend, and hold harmless each Indemnified Party from and against any and all expenses, lossesincluding reasonable 8 - PLAZA TOWER ONE LEASE attorneys’ fees, costsimposed on any Indemnified Party, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach arising out of any representation injury or warranty made by ENBC death of any person or damage or destruction of property occurring in or pursuant to this Agreement; (b) any default in on the performance of any common areas of the covenants Building caused by Tenant’s gross negligence or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7willful misconduct.
11.3 The parties agree that each party shall have B. Tenant, at Tenant’s expense, agrees to keep in force during the exclusive right to control Term of this Lease and any extensions thereof the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability following insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLpolicies:
Appears in 1 contract
Samples: Lease (Lifeline Therapeutics, Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees With respect to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forWarehouse Services, OHL shall indemnify, defend and hold ENBC CLIENT harmless for any damage, cost, expense, loss, or liability that CLIENT may incur as a result of injury or death to any person (including the employees of CLIENT, OHL and its subcontractors) and for damage to property (including the property of OHL and its subcontractors) arising out of or resulting directly from OHL’s or its subcontractors’ negligent use of any equipment and shipping facilities hereunder or OHL’s breach of this Agreement. With respect to Transportation Services CLIENT agrees that it will solely look to the third party contracted by OHL to handle the Products for any cost, expense, loss, or liability that CLIENT may incur as a result of injury or death to any person (including the employees of CLIENT, OHL and its subcontractors) and for damage to property (including the property of OHL and its subcontractors); provided that OHL in good faith pursues, on behalf of CLIENT, all ENBC Subsidiaries valid claims CLIENT may have against such third party, as set forth on Exhibit A – Scope of Work, at CLIENT’s cost and ENBC Franchisees that purchase Products expense; further, provided, with respect to all such services, OHL shall indemnify, defend and hold CLIENT, its employees and agents harmless from and againstagainst any and all liability, all expensesloss or damage, losses, cost or expense asserted by a third party (including any indemnified party’s court costs, deficiencies, liabilities investigative costs and damages (including related counsel feesreasonable attorney fees associated therewith) incurred arising out of or suffered by them resulting from: (a) any from OHL’s breach of or failure to perform any representation of the covenants or warranty made conditions of this Agreement required to be performed or complied with by the Supplier in OHL or pursuant to this Agreement; (b) any default negligent act or omission or intentional act of OHL in the performance of any of its obligations under this Agreement. CLIENT shall indemnify, defend and hold OHL harmless for any cost, expense, loss, or liability that OHL may incur, including legal or expert fees or costs, as a result of injury or death to any person (including the employees of OHL, CLIENT and its subcontractors) and for damage to property (including the property of CLIENT and his subcontractors) and any fine or penalty arising out of or resulting directly from CLIENT’s or its subcontractors’ willful or negligent acts or omissions, the use of any equipment and shipping facilities hereunder or the breach of this Agreement. In the event that a court, arbitrator or the National Labor Relations Board should order CLIENT to rescind or disavow the Agreement with OHL, CLIENT will reimburse OHL for all costs incurred in conjunction with the performance of services under this Agreement. CLIENT shall further indemnify, defend and hold OHL, its employees and agents harmless from and against any and all liability, loss or damage, cost or expense asserted by a third party (including any indemnified party’s court costs, investigative costs and reasonable attorney fees associated therewith) arising out of or resulting from CLIENT’s breach of or failure to perform any of the covenants or agreements made conditions of this Agreement required to be performed or complied with by the Supplier in this Agreement; (c) any claim or action by any consumer CLIENT or any other third party arising out negligent act or omission or intentional act of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default CLIENT in the performance of any of the covenants or agreements made by ENBC its obligations under this Agreement. Notwithstanding anything in this Agreement; Agreement to the contrary, neither party in the performance of its obligations under this Agreement shall be liable to the other for any special, incidental, indirect or consequential damages even if the parties have been advised of the possibility of the same, and without regard to the nature of the claim or the underlying theory or cause of action (whether in contract, tort or otherwise). Excluding any amounts that may be paid due to insurance coverage, in no event shall OHL’s liability exceed the greater of, (i) the amounts paid by CLIENT to OHL during the preceding twelve (12) month period, (ii) or $500,000. OHL shall provide and keep in effect during the period of this Agreement insurance to cover itself, its employees, and its subcontractors in minimum limits as follows:
(a) Xxxxxxx’x Compensation Statutory (b) Comprehensive General Liability Bodily Injury $ 5,000,000 (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or Contractual Liability $ 1,000,000 (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party Employer’s Liability $ 500,000 (e) Warehouseman’s Legal Liability $ 1,000,000 (f) Property and Casualty on Facility $ 2,000,000 Such insurance shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result be in such party having an indemnification obligation under Section 11.1 or Section 11.2 form and carried with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, insurance companies reasonably acceptable to CLIENT and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderCLIENT shall be named as a certificate holder on said policies.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Logistics Services Agreement (Cambium Learning Group, Inc.)
Indemnification and Insurance. 11.1 In the Merger Agreement, Opto Circuits and Purchaser have agreed that all rights to indemnification by Criticare and its subsidiaries existing in favor of each present and former officer and director (each such present and former officer and/or director determined as of the Effective Time), as provided in Criticare's certificate of incorporation or its bylaws or the certificate of incorporation or bylaws of the applicable subsidiary of Criticare, will survive the Merger and continue in full force and effect for a period of at least 6 years from the Effective Time of the Merger. The Supplier agrees to indemnify ENBC Merger Agreement also provides that, from and all ENBC Subsidiaries and ENBC Franchisees forafter the Effective Time, Opto Circuits shall, and hold ENBC shall cause the surviving corporation to, indemnify each present (as of the Effective Time) and former officer and director of Criticare (or any subsidiary thereof) against all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expensesclaims, losses, costsliabilities, deficienciesdamages, liabilities and damages liabilities, costs or expenses (including related counsel reasonable attorneys' fees) incurred ), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or suffered by them resulting from: (a) any breach investigation arising out of any representation or warranty made by pertaining to all acts and omissions, or alleged acts or omissions, occurring on or before the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party Effective Time, arising out of the production fact that such person is or sale was an officer, director, employee, fiduciary or agent of Criticare (or any subsidiary thereof) to the fullest extent Criticare is permitted to do so under applicable law. In the event of any such action, Opto Circuits and the surviving corporation will pay, as incurred, the reasonable fees and expenses of a counsel selected by such indemnified party in advance of the Products by the Supplier (including final disposition of any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or such action to the fullest extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action permitted under any law or regulation relating to public health, the sale of food and drugsapplicable law, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (Opto Circuits and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party surviving corporation will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC such matter. The Merger Agreement further provides that Opto Circuits and the Supplier acknowledge surviving corporation shall maintain, for a period of 6 years after the Effective Time, the current directors' and agree that ENBCofficers' liability insurance policies maintained by Criticare. Under the terms of the Merger Agreement, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be such insurance coverage is required to enter into indemnity agreements with Authorized Recipients. ENBC and be maintained only to the Supplier agree extent that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any coverage can be maintained at an aggregate cost of not greater than 200 percent of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, current annual premium paid by Criticare for the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, Criticare's directors' and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's officers' liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLpolicies.
Appears in 1 contract
Indemnification and Insurance. 11.1 (a) The Supplier agrees By-Laws and Certificate of Incorporation of the Surviving Corporation shall contain the provisions with respect to indemnification set forth in the By-Laws and Certificate of Incorporation of Expert, which provisions 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 at the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required after the Effective Time by law.
(b) Notwithstanding the foregoing, the Surviving Corporation shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Certificate of Incorporation or By-Laws, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, each present and all ENBC former director, officer or employee of Expert or any of its Subsidiaries and ENBC Franchisees that purchase Products harmless from and against(collectively, all expensesthe "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (including related counsel feesx) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of or pertaining to the production transactions contemplated by this Agreement or sale (y) otherwise with respect to any acts or omissions occurring at or prior to the Effective Time, to the same extent as provided in Expert's Certificate of Incorporation or By-Laws or any applicable contract or agreement as in effect on the Products by date hereof, in each case for a period of six (6) years after the Supplier Effective Time. In the event of any such claim, action, suit, proceeding or investigation (including any claims whether arising before or actions for personal injury and any products liability claims or actionafter the Effective Time), (i) the Indemnified Parties may retain as its counsel Goodxxx, Xxocter & Hoar XXX, or other counsel reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall advance to the Indemnified Party the reasonable fees and expenses of such counsel, 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 Supplier Surviving Corporation shall have no obligation not be liable for any settlement effected without its written consent (which consent 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 (6) year period, all rights to indemnify ENBC indemnification in respect of any such claim or claims shall continue until the disposition of any ENBC Subsidiary or ENBC Franchisee and all such claims. The Indemnified Parties as a group may retain only one law firm to represent them in each applicable jurisdiction with respect to any claim single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or action 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) This Section 6.13 shall survive the extent such claim or action consummation of the Merger at the Effective Time, is attributable intended to benefit Expert, the alterationSurviving Corporation and the Indemnified Parties, handling or misbranding shall be binding on all successors and assigns of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use Surviving Corporation and Activision and shall be enforceable by the Supplier of the Formulations, Procedures and Specifications; or Indemnified Parties.
(d) any claim or action brought by any federalActivision shall, state, local or foreign governmental agency in connection with until the production or sale sixth anniversary of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating Effective Time, cause to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC be maintained in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partyeffect, to the extent such claim available, the policies of directors' and officers' liability insurance maintained by Expert and the Expert Subsidiaries as of the date hereof (or action is attributable policies of at least the same coverage and amounts containing terms that are not less advantageous to the use by insured parties) with respect to claims arising from facts that occurred on or prior to the Supplier 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 Formulationspurchase of such insurance by Activision, Procedures Activision may purchase a six-year extended reporting period endorsement ("Reporting Tail Coverage") under Expert's existing directors' and Specifications 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 is attributable to the alterationindirectly resulting from, handling or misbranding of Products after they have been delivered to ENBCin consequence of, or any ENBC Subsidiaryway involving wrongful acts or omissions occurring or prior to the Effective Time, ENBC Franchisee including without limitation all claims based upon, arising out of, directly or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation indirectly resulting from, in consequence of, or conflict with, any trademarks, trade names way involving the Merger or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party any and all related events. Expert shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party Activision in the defense of any claim or action by the other party hereunderobtaining such insurance coverage.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach Parent and Merger Sub agree that all rights to exculpation, indemnification (including rights accruing under self-insurance arrangements in respect of deductibles, coverage limits or forgone third-party insurance) and advancement of expenses for acts or omissions Agreement and Plan of Merger occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the current or former directors, officers or employees (in their capacity as such or when serving at the request or for the benefit of the Company or its Subsidiaries, as a director, officer, partner, employee, agent or fiduciary of any representation other partnership, joint venture, trust, employee benefit plan or warranty made by other entity or enterprise), as the Supplier case may be, of the Company or its Subsidiaries as provided in any agreement (copies of which have been provided to Parent and are listed in Section 5.9 of the Company Disclosure Schedule) or pursuant to this Agreement; (b) any default in the performance articles of incorporation or bylaws or other organization documents of the Company or its Subsidiaries shall survive the Merger and shall continue in full force and effect. For a period of six (6) years from the Effective Time, Parent and the Surviving Corporation shall maintain in effect the exculpation, indemnification and advancement of expenses and arrangement of self-insurance provisions of the Company’s and any of its Subsidiaries’ articles of incorporation and bylaws or similar organization documents in effect immediately prior to the Effective Time or in any indemnification agreements of the Company or its Subsidiaries with any of their respective current or former directors, officers or employees in effect as of the date hereof with respect to actions or omissions taken at or prior to the Effective Time, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any of the covenants or agreements made by the Supplier in this AgreementIndemnified Party; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation all rights to indemnify ENBC indemnification in respect of any Action (as hereinafter defined) pending or asserted or any ENBC Subsidiary claim made within such period shall continue until the disposition of such Action or ENBC Franchisee resolution of such claim.
(b) From and after the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted under applicable Law, jointly and severally indemnify and hold harmless (and advance funds in respect of each of the foregoing) each current and former director and officer of the Company or any of its Subsidiaries (each, together with such Person’s heirs, executors or administrators, an “Indemnified Party”) against any costs or expenses (including advancing reasonable attorneys’ fees, costs and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (an “Action”), arising out of, relating to or in connection with any action or omission of the Indemnified Party occurring or alleged to have occurred at or prior to the Effective Time and with respect to any claim current and former directors occurring or action alleged to have occurred whether before or after the extent such claim or action is attributable to the alterationEffective Time, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production such Persons serving as an officer, director or sale other fiduciary of the Products by Company or any other entity if such service was at the Supplier (including without limitation request or for the benefit of the Company or any claim of its Subsidiaries to the same extent as provided in the Company’s and any of its Subsidiaries’ articles of incorporation and bylaws or action under similar organizational documents in effect immediately prior to the Effective Time or in any law indemnification agreements of the Company or regulation relating to public health, its Subsidiaries in effect as of the sale of food and drugs, and the safe conduct of business), date hereof; provided, however, that neither Parent nor the Supplier Surviving Corporation shall have no obligation be liable for any settlement effected without either Parent’s or the Surviving Corporation’s prior written consent, and the Surviving Corporation shall not be obligated to indemnify ENBC or 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 ENBC Subsidiary or ENBC Franchisee jurisdiction with respect to any claim single such claim, action, suit, proceeding or action investigation; provided, further, however, that if any Indemnified Party or group of Indemnified Parties is advised in writing by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party or group of Indemnified Parties and Agreement and Plan of Merger another Indemnified Party or group of Indemnified Parties, then the Surviving Corporation shall pay the fees and expenses of the minimum number of counsel as are required to eliminate such conflicts of interest. It shall be a condition to the extent advancement of any amounts to be paid in respect of legal and other fees, costs and expenses that the Surviving Corporation receive an undertaking by the Indemnified Party to repay such claim legal and other fees, costs and expenses paid in advance if it is finally judicially determined that such Indemnified Party is not entitled to be indemnified under applicable Law. Notwithstanding anything contained herein, the Surviving Corporation shall not amend its bylaws or certificate of formation as of or after the Effective Time if such action is attributable would adversely affect the rights of individuals who, at or prior to the alterationEffective Time, handling were entitled to advances, indemnification, contribution or misbranding exculpation thereunder for actions or omissions by such individuals in their capacity as directors or officers of Products after they have been delivered to ENBC the Company or any ENBC Subsidiary or ENBC Franchisee or is attributable of its Subsidiaries at any time prior to the use by the Supplier of the Formulations, Procedures and SpecificationsEffective Time.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim Parent shall cause the Surviving Corporation to purchase and maintain directors’ and officers liability insurance and fiduciary liability insurance in the form of a six (6) year “tail policy” in effect as of the Effective Time and of at least the same coverage and amounts, and containing terms and conditions that are not less advantageous in the aggregate than such existing policies with respect to matters arising on or action by any consumerbefore the Effective Time; provided, governmental agency or any other third partyhowever, including any claim that if such “tail policy” costs more than 300% of infringement or violation ofsuch last annual premium, or conflict with, any patent or trade secret the Surviving Corporation shall purchase the maximum amount of any third party, coverage that can be obtained for 300% of such last annual premium. Prior to the extent Effective Time, with the written consent of Parent, the Company may procure such claim or action is attributable “tail policy” and prepay the premiums associated therewith for the entire six-year period, with such coverage to the use by the Supplier be effective commencing as of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or Effective Time.
(d) any claim The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of or action by any third party alleging infringement or violation exclusive of, any other rights such Indemnified Party may have under the articles of incorporation or conflict withbylaws or other organizational documents of the Company or any of its Subsidiaries or the Surviving Corporation, any trademarksother indemnification arrangement, trade names self-insurance arrangement, the TBOC or trade dressotherwise. The provisions of this Section 5.9 shall survive the consummation of the Merger and expressly are intended to benefit, and are enforceable by, each of the Indemnified Parties. 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 extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC Company or any ENBC Subsidiary of its Subsidiaries or ENBC Franchisee their respective current or former officers, directors and employees, it being understood and agreed that the indemnification provided for in this Section 5.9 is obligated not prior to make indemnity payments or in substitution for any such claims under any such agreement resulting from policies.
(e) This Section 5.9 shall survive the consummation of the Merger and is intended to be for the benefit of, and shall be enforceable by, present or former directors and officers of the Company or its Subsidiaries, their respective heirs and personal representatives and shall be binding on Parent and the Surviving Corporation and their respective successors and assigns. In the event Parent, the Surviving Corporation or any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC their respective successors or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the Supplier's comprehensive general liability coverage successors and assigns of Parent or the Surviving Agreement and Plan of Merger Corporation, as the case may be, shall assume the obligations set forth in this Section 5.9. This Section 5.9 may not be amended in a manner that is adverse to an Indemnified Party (including products liabilitytheir heirs and personal representatives) or terminated without the consent of such Indemnified Party (including their heirs and representatives).
(f) Parent and the "Supplier CGLSurviving Corporation shall jointly and severally indemnify any Indemnified Party against all reasonable expenses, including reasonable attorneys’ fees, costs and expenses, that may be incurred by any Indemnified Party in bringing any successful claim to enforce the indemnity, exculpation, advancement or other obligations provided in this Section 5.9, provided that any Indemnified Party shall first be obligated to provide ten (10) days’ advance written notice to Parent before bringing any such claim. Except if failure to so provide such notice would result in the expiration of any statute of limitations regarding such claim, no notice shall be required.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Silverleaf Resorts Inc)
Indemnification and Insurance. 11.1 The Supplier agrees A. Except to the extent attributable to the negligence of Landlord or its agents, Tenant shall indemnify ENBC and save harmless Landlord and its agents against and from (i) any and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: claims (a) any breach arising from (x) the conduct or management of the demised premises or of any representation business therein, or warranty made by the Supplier (y) any work or thing whatsoever done, or any condition created in or pursuant about the demised premises during the term hereof or during the period of time, if any, prior to this Agreement; the Commencement Date that Tenant may have been given access to the demised premises, or (b) arising from any default in the performance negligent or otherwise wrongful act or omission of Tenant or any of its subtenants or licensees or its or their employees, agents visitors, invitees or contractors or subcontractors of any of the covenants tier, and (ii) all costs, expenses and liabilities incurred in or agreements made by the Supplier in this Agreement; (c) any connection with each such claim or action or proceeding brought thereon. In case any action or proceeding be brought against Landlord by reason of any consumer such claim (except to the extent attributable to the negligence of Landlord or its agents), Tenant, upon notice from Landlord, shall resist and defend such action or proceeding at Tenant's expense by counsel reasonably satisfactory to Landlord. Landlord hereby approves counsel retained by Tenant's insurance company defending any other third party such claim.
B. Tenant shall secure and keep in full force and effect throughout the term hereof, at Tenant's sole cost and expense (i) Comprehensive General Liability Insurance, written on an occurrence basis, to afford protection in such amount as Landlord may determine and in no event less than $3,000,000 combined single limit for personal and bodily injury and death arising therefrom and Broad Form property damage arising out of any one occurrence in, upon, adjacent to or in connection with the production demised premises or sale any part thereof, which insurance shall include coverage for contractual liability (including the matters set forth in Paragraph A above), owner's protective liability, independent contractor's liability and completed operations liability; (ii) during the course of construction of any Tenant's Changes and until completion thereof, Builder's Risk insurance or equivalent on an "all risk" basis (including collapse) on a completed value (non-reporting) form for full replacement value covering the interests of Landlord and Tenant (and their respective contractors and subcontractors) in all work incorporated in the building and all materials and equipment in or about the demised premises; (iii) Workers' Compensation Insurance, as required by law and (iv) such other insurance in such amounts as Landlord may require from time to time. All such insurance shall contain only such "deductibles" as Landlord shall reasonably approve. The minimum amounts of insurance required under this Paragraph shall not be construed to limit the extent of Tenant's liability under this lease. In addition, prior to any entry upon the demised premises by Tenant or any of Tenant's employees, agents or contractors, Tenant shall deliver or cause to be delivered to Landlord certificates evidencing that all insurance required hereunder is in full force and effect. Tenant shall have the right to insure and maintain the insurance coverages set forth in this Paragraph under blanket insurance policies covering other premises occupied by Tenant so long as such blanket policies comply as to terms and amounts with the insurance provisions set forth in this lease.
C. All such insurance shall be written in form and substance reasonably satisfactory to Landlord by an insurance company in a financial size category of not less than XI and with
D. All insurance procured by Tenant under this Article shall be issued in the names and for the benefit of Landlord (and each member thereof in the event Landlord is a partnership or joint venture), Landlord's managing agent and Tenant, as their respective interests may appear, and shall contain an endorsement that Landlord, although named as an additional insured, nevertheless shall be entitled to recover under said policies for any loss or damages occasioned to it, its agents, employees, contractors, directors, shareholders, partners and principals (disclosed or undisclosed) by reason of the Products negligence or tortious acts of Tenant, its servants, agents, employees and contractors.
E. Each party shall include in each of its insurance policies covering loss, damage or destruction by fire or other casualty (insuring the Supplier building and Landlord's property therein and the rental value thereof, in the case of Landlord, and insuring Tenant's personal property and fixtures and business interruption insurance, in the case of Tenant) a waiver of the insurer's right of subrogation against the other party or, if such waiver should be unobtainable or unenforceable, (including i) an express agreement that such policy shall not be invalidated if the insured waives before the casualty the right of recovery against any claims party responsible for a casualty covered by such policies, or actions (ii) any other form of permission for personal injury the release of the other party. If such waiver, agreement or permission shall cease to be obtainable without additional charge, then if the other party shall so elect and any products liability claims shall pay the insurer's additional charge therefor, such waiver, agreement or action)permission shall be included in the policy, or the other party shall be named as an additional insured in the policy, provided, however, that Tenant shall at no time be named a loss payee under any of Landlord's insurance policies. Notwithstanding the Supplier foregoing, any failure by Tenant as an additional insured promptly to endorse to the order of Landlord any instrument for the payment of money under a policy of which Landlord is the owner or original or primary insured shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be a default under this lease.
F. Each party hereby releases the other party with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damage or action destruction with respect to its property (including rental value or business interruption) occurring during the term hereof and with respect and to the extent such claim to which it is insured under a policy or action policies containing a waiver of subrogation or permission to release liability or naming the other party as an additional insured, as provided in Paragraph E above. If, notwithstanding the recovery of insurance proceeds by either party for loss, damage or destruction of its property (or rental value or business interruption), the other party is attributable liable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee first party with respect thereto or is attributable obligated under this lease to make replacement, repair or restoration or payment, then provided the first party's right of full recovery under its insurance policies is not thereby prejudiced or otherwise adversely affected, the amount of the net proceeds of the first party's insurance against such loss, damage or destruction shall be offset against the second party's liability to the use by first party therefor, or shall be made available to the Supplier second party to pay for replacement, repair or restoration, as the case may be.
G. The waiver of subrogation or permission for release referred to in Paragraph E above shall extend to the Formulationsagents of each party and its and their employees. The releases provided for in Paragraph F above shall likewise extend to such agents and employees, Procedures if and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent that such claim waiver or action permission is attributable effective as to the alteration, handling them. Nothing contained in Paragraphs E or misbranding of Products after they have been delivered F above shall be deemed to ENBC impose upon either party any duty to procure or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of maintain any of the covenants or agreements made by ENBC kinds of insurance referred to therein except as otherwise required in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third Article. If either party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Lease Agreement (Martha Stewart Living Omnimedia Inc)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) From and after the Effective Time, the Surviving Corporation and its subsidiaries shall (and Parent shall cause the Surviving Corporation and its subsidiaries to) honor and fulfill in all respects (i) the obligations of the Company and the Company Subsidiaries under any and all ENBC indemnification agreements between the Company or any Company Subsidiary and any of their respective current or former directors and officers and any person who becomes a director or officer of the Company or any Company Subsidiary prior to the Effective Time (the “Indemnified Party”) and (ii) any indemnification, exculpation or advance of expenses provision under the certificate of incorporation and bylaws (or comparable organizational documents) of the Company and the Company Subsidiaries as in effect as of the date of this Agreement.
(b) Without limiting the generality of the provisions of Section 6.9(a), during the period commencing at the Effective Time and ENBC Franchisees forending on the sixth anniversary of the Effective Time, to the fullest extent permitted by applicable Law, Parent, the Surviving Corporation and its subsidiaries shall (and Parent shall cause the Surviving Corporation and its subsidiaries to) indemnify and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless each Indemnified Party from and againstagainst any costs, all fees and expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, proceeding, investigation or inquiry, whether civil, criminal, administrative or investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (including related counsel fees) incurred or suffered by them resulting from: (ai) any breach action or omission or alleged action or omission of such Indemnified Party (regardless of whether such action or omission, or alleged action or omission, occurred prior to, at or after the Effective Time), or (ii) any representation or warranty made of the transactions contemplated by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that if, at any time prior to the Supplier sixth anniversary of the Effective Time, any Indemnified Party delivers to Parent a written notice asserting a claim for indemnification under this Section 6.9(b), then the claim asserted in such notice shall survive the sixth anniversary of the Effective Time until such time as such claim is fully and finally resolved. In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent permitted by applicable Law, Parent, the Surviving Corporation and its subsidiaries shall (and Parent shall cause the Surviving Corporation and its subsidiaries to) advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Party therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Party in connection with any such claim, proceeding, investigation or inquiry upon receipt of an undertaking by such Indemnified Party to repay such advances if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification. In the event of any such claim, proceeding, investigation or inquiry, (i) Parent shall have the right to control the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, Parent shall be deemed to have waived any right to object to the Indemnified Party’s entitlement to indemnification hereunder with respect thereto), (ii) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not Parent shall elect to control the defense of any such claim, proceeding, investigation or inquiry, (iii) Parent shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Party promptly after statements therefor are received, whether or not Parent shall elect to control the defense of any such claim, proceeding, investigation or inquiry (provided that notwithstanding anything to the contrary in this Section 6.9 or elsewhere in this Agreement, the Surviving Corporation (and Parent) shall not be obligated to pay for the fees and expenses of more than one counsel (selected by a majority of the applicable Indemnified Parties for any Indemnified Party in any jurisdiction with respect to a single claim, proceeding, investigation or inquiry) except to the extent that two or more of such Indemnified Parties have an actual material conflict of interest in such claim, proceeding, investigation or inquiry) and (iv) no obligation Indemnified Party shall be liable for any settlement effected without his or her prior express written consent (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding anything to indemnify ENBC the contrary set forth in this Section 6.9(b) or elsewhere in this Agreement, neither Parent nor any ENBC Subsidiary of its Affiliates shall settle or ENBC Franchisee otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim claim, proceeding, investigation or action inquiry for which indemnification may be sought by an Indemnified Party 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, proceeding, investigation or inquiry.
(c) During the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, Parent and the Surviving Corporation shall maintain in effect the Company’s current directors’ and officers’ liability insurance (“D&O Insurance”) in respect of acts or omissions occurring at or prior to the extent such claim or action is attributable Effective Time, covering each person covered by the D&O Insurance, on terms with respect to the alteration, handling or misbranding of Products after they have been delivered coverage and amounts that are equivalent to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier those of the Formulations, Procedures and SpecificationsD&O Insurance; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that in satisfying their obligations under this Section 6.9(c), Parent and the Supplier Surviving Corporation shall have no obligation not be obligated to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee pay annual premiums in excess of two hundred and fifty percent (250%) of the amount paid by the Company for coverage for its last full fiscal year as set forth in Section 6.9(c) of the Company Disclosure Letter (such two hundred and fifty percent (250%) amount, the “Maximum Annual Premium”); provided, however, that that if the annual premiums of such insurance coverage exceed such amount, Parent and the Surviving Corporation shall be obligated to obtain a policy with respect to any claim or action the greatest coverage available for a cost not exceeding the Maximum Annual Premium. Prior to the extent such claim or action is attributable Effective Time, notwithstanding anything to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC contrary set forth in this Agreement; , the Company may purchase a six-year “tail” prepaid policy on the D&O Insurance. In the event that the Company elects to purchase such a “tail” policy prior to the Effective Time, Parent and the Surviving Corporation shall maintain such “tail” policy in full force and effect and continue to honor their respective obligations thereunder, in lieu of all other obligations of Parent and the Surviving Corporation under the first sentence of this Section 6.9(c) for so long as such “tail” policy shall be maintained in full force and effect.
(cd) The obligations of Parent and the Surviving Corporation under this Section 6.9 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any claim or action by any consumerIndemnified Party to whom this Section 6.9 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9, governmental agency each of whom may enforce the provisions of this Section 6.9).
(e) If Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other third party, including any claim Person that shall not be the continuing or the surviving corporation or entity of infringement such consolidation or violation ofmerger, or conflict with(ii) transfers or conveys all or substantially all of its properties and assets to any Person, any patent or trade secret of any third partythen, and in each such case, to the extent such claim or action is attributable to the use by the Supplier of the Formulationsnecessary, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party proper provision shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing made so that the Supplier's comprehensive general liability coverage (including products liability) (successors and assigns of Parent or the "Supplier CGLSurviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.9.
Appears in 1 contract
Samples: Merger Agreement (Lasercard Corp)
Indemnification and Insurance. 11.1 The Supplier Subject to any limitation post-petition required by the Bankruptcy Court, the Client agrees to indemnify ENBC and hold harmless FTI and its shareholders, directors, officers, managers, employees, contractors, agents and controlling persons (each, an “Indemnified Party”) from and against any losses, claims, damages or expenses, or if same was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation, in each case by reason of (or arising in part out of) any event or occurrence related to this agreement or any predecessor agreement for services or the fact that any Indemnified Party is or was an agent, officer director, employee or fiduciary of the Client, or by reason of any action or inaction on the part of any Indemnified Party while serving in such capacity (an “Indemnifiable Event”) against expenses (including reasonable attorneys’ fees and disbursements), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any Indemnifiable Event. The Application shall include the assumption by the Client of FTI’s right to indemnification in respect of its actions under this Agreement prior to the Petition Date. The Indemnified Party shall promptly forward to the Client all ENBC Subsidiaries written notifications and ENBC Franchisees forother matter communications regarding any claim that could trigger the Client’s indemnification obligations under this Section 6. If the Client so elects or is requested by an Indemnified Party, the Client will assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the reasonable fees and disbursements of such counsel. In the event, however, such Indemnified Party is advised by counsel that having common counsel would present such counsel with a conflict of interest or if the defendants in, or targets of, any such action or proceeding include both an Indemnified Party and the Client, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees such Indemnified Party is advised by counsel that purchase Products harmless there may be legal defenses available to it or other Indemnified Parties that are different from and againstor in addition to those available to the Client, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by if the Supplier in or pursuant Client fails to this Agreement; (b) any default in assume the performance of any defense of the covenants action or agreements made by proceeding or to employ counsel reasonably satisfactory to such Indemnified Party, in either case in a timely manner, then such Indemnified Party may employ separate counsel to represent or defend it in any such action or proceeding and the Supplier in this AgreementClient will pay the reasonable fees and disbursements of such counsel; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier Client will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for an Indemnified Party in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Client assumes, the Indemnified Party will have the right to participate in such litigation and to retain its own counsel at such Indemnified Party’s own expense. The Client further agrees that the Client will not, without the prior written consent of the Indemnified Party (which consent shall have no obligation not be unreasonably withheld or delayed), settle or compromise or consent to indemnify ENBC the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party or any ENBC Subsidiary other Indemnified Party is an actual or ENBC Franchisee with respect potential party to any claim such claim, action, suit or action proceeding) unless (i) to the extent that such claim settlement, compromise or action is attributable consent purports directly or indirectly to cover the alteration, handling or misbranding of Products after they have been delivered to ENBC Indemnified Party or any ENBC Subsidiary other Indemnified Party, such settlement, compromise or ENBC Franchisee or is attributable to the use by the Supplier consent includes an unconditional release of the FormulationsIndemnified Party and each other Indemnified Party from all liability arising out of such claim, Procedures and Specifications; action, suit or proceeding, or (dii) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent that such claim settlement, compromise or action is attributable consent does not purport directly or indirectly to cover the alteration, handling or misbranding of Products after they have been delivered to ENBC Indemnified Party or any ENBC Subsidiary or ENBC Franchisee or is attributable other Indemnified Party, the Client has given the Indemnified Party reasonable prior written notice thereof and used all reasonable efforts, after consultation with the Indemnified Party, to the use by the Supplier obtain an unconditional release of the Formulationsother Indemnified Parties hereunder from all liability arising from all liability arising out of such claim, Procedures and Specifications.
11.2 ENBC action, suit or proceeding. The Indemnified Party shall not enter into any closing agreement or final settlement that could trigger the Client’s indemnification obligations under this Section 6 without the written consent of the Client, which shall not unreasonably be withheld or delayed or conditioned. The Client will not be liable for any settlement of any action, claim, suit or proceeding affected without the Client’s prior written consent, which consent shall not be unreasonably withheld or delayed or conditioned, but if settled with the consent of the Client or if there be a final judgment for the plaintiff, the Client agrees to indemnify and hold harmless the Supplier for, and to hold the Supplier harmless Indemnified Party from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred against any loss or suffered liability by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel reason of such party's selectionsettlement or judgment, that each party will promptly give as the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereundercase may be.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Engagement Agreement (Gsi Group Inc)
Indemnification and Insurance. 11.1 (a) The Supplier agrees Articles of Incorporation and By-laws of the Surviving Corporation shall contain the provisions with respect to indemnification set forth in the Company's Charter Documents, which provisions shall not be amended, modified or otherwise 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 at the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required after the Effective Time by law and then only to the minimum extent required by such law.
(b) The Surviving Corporation shall, to the fullest extent permitted under applicable law or under the Surviving Corporation's Articles of Incorporation or By-laws, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, each present and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstformer director, all expensesofficer or employee of the Company or any of its subsidiaries (collectively, the "INDEMNIFIED PARTIES") against any costs or expenses (including attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (including related counsel feesx) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of or pertaining to the production transactions contemplated by this Agreement or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee y) otherwise with respect to any claim acts or action omissions occurring at or prior to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partyEffective Time, to the same extent as provided in the Company's 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 hereof. In the event of any such claim claim, action, suit, proceeding or action is attributable investigation (whether arising before or after the Effective Time) and subject to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the specific terms of any settlementindemnification contract, (i) of any claim or action counsel retained by the Indemnified Parties for any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel period after the Effective Time shall be reasonably satisfactory to the Surviving Corporation, (ii) after the Effective Time, the Surviving Corporation shall pay the reasonable fees and expenses of such party's selectioncounsel, that each party promptly after statements therefor are received and (iii) the Surviving Corporation will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any such matter; PROVIDED, HOWEVER, that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); 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 shall continue until the 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 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) 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 (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 Company's current directors and officers 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 substantially equivalent insurance coverage is unavailable, the best available coverage; PROVIDED, HOWEVER, that Parent and the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 200% of the annual premium currently paid by the other party hereunderCompany for such insurance, but in such case shall purchase as much such coverage as possible for such amount.
11.4 ENBC (e) From and after the Supplier acknowledge and agree that ENBCEffective Time, ENBC Subsidiaries and ENBC Franchisees, on Parent shall unconditionally guarantee the one handtimely payment of all funds owing by, and the Suppliertimely performance of all other obligations of, on the other handSurviving Corporation under this Section 5.06.
(f) This Section shall survive the consummation of the Merger at the Effective Time, may be required is intended to enter into indemnity agreements with Authorized Recipients. ENBC benefit the Company, the Surviving Corporation and the Supplier agree that (a) in Indemnified Parties and the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any Officer Employees, shall be binding on all successors and assigns of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, Surviving Corporation and shall be enforceable by the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofIndemnified Parties.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Raychem Corp)
Indemnification and Insurance. 11.1 (a) The Supplier Certificate of Incorporation and By-Laws of the Surviving Corporation shall contain provisions with respect to indemnification and exculpation similar to those set forth in the Certificate of Incorporation and By-Laws of Target, which provisions the Acquiror shall not and shall cause the Surviving Corporation not to amend, repeal or otherwise modify for a period of six (6) years from the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees or agents of Target, unless such amendment, repeal or other modification is required by applicable Law.
(b) From and after the Effective Time, Acquiror agrees to that it will indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present director and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstofficer of Target (when acting in such capacity) determined as of the Effective Time (the "Indemnified Parties"), all expensesagainst any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages or liabilities (collectively, liabilities and damages (including related counsel fees"Costs") incurred in connection with any claim, action, suit, proceeding or suffered by them resulting from: 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 Target would have been permitted 45 55 under the Connecticut Code and its Certificate of Incorporation or By-Laws in effect on the date of this Agreement to indemnify such person (aand Acquiror shall also advance expenses as incurred to the fullest extent permitted under applicable Law and the Certificate of Incorporation and the By-Laws of Target, 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 breach of any representation or warranty made by the Supplier in or pursuant Any Indemnified Party wishing to this Agreement; claim indemnification under paragraph (b) any default in the performance of this Section 5.6, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Acquiror thereof in writing, but the failure to so notify shall not relieve Acquiror of any liability it may have to such Indemnified Party if such failure does not materially prejudice Acquiror. In the covenants event of any such claim, action, suit, proceeding or agreements made by investigation (whether arising before or after the Supplier in this Agreement; Effective Time), (ci) Acquiror or the Surviving Corporation shall have the right to assume the defense thereof, and Acquiror shall not be liable to such Indemnified Parties for any claim or action by any consumer legal expenses of other counsel or any other third party arising out expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Acquiror or the Surviving Corporation elects not to assume such defense, or if there are any issues which raise material conflicts of interest between Acquiror or the production Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to Acquiror, and Acquiror or sale the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), Indemnified Parties; provided, however, that the Supplier Acquiror shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or be obligated pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; paragraph (c) any claim to pay for only one firm or action by any consumercounsel for all Indemnified Parties, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to (ii) the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party Indemnified Parties will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereundersuch matter, and (iii) Acquiror shall not be liable for any settlement effected without its prior written consent.
11.4 ENBC (d) For a period of six (6) years after the Effective Time and to the extent available, Acquiror or the Surviving Corporation shall maintain in effect policies of directors' and officers' liability insurance covering those persons who are currently covered by Target's directors' and officers' liability insurance policy on terms (including the amounts of coverage and the Supplier acknowledge and agree amounts of deductibles, if any) that ENBC, ENBC Subsidiaries and ENBC Franchisees, on are no less favorable to them in any material respect than the one hand, and terms now applicable to them under Target's current insurance policies; provided that the Supplier, on the other hand, may Surviving Corporation shall not be required to enter into indemnity agreements with Authorized Recipients. ENBC and pay an annual premium for such insurance in excess of 175% of the Supplier agree that last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(ae) in If Acquiror or the event ENBC Surviving Corporation or any ENBC Subsidiary of their successors or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements assigns (i) providing 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 Supplier's comprehensive general liability coverage successors and assigns of Acquiror or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.6; provided, that the failure to make such provisions shall not affect the validity of any such consolidation, merger or transfer.
(including products liabilityf) (The provisions of this Section 5.6 are intended to be for the "Supplier CGLbenefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and representatives.
Appears in 1 contract
Samples: Merger Agreement (Mci Worldcom Inc)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) From and all ENBC Subsidiaries after the Effective Time, the Surviving Corporation shall (and ENBC Franchisees forParent shall cause the Surviving Corporation to) indemnify, defend and hold harmless, and advance expenses to, the 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 required by any of: (i) the Company Charter Documents as in effect on the date of this Agreement; and (ii) any applicable contract as in effect on the date of this Agreement and disclosed in the Company Disclosure Schedule.
(b) Without limiting the provisions of Section 5.8(a), during the period commencing with the Closing and ending on the sixth anniversary of the Effective Time, Parent shall, to the fullest extent permitted by Law: (i) indemnify and hold ENBC harmless each Indemnitee against and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstany costs or expenses (including reasonable fees of counsel of nationally recognized reputation), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to any action or omission or alleged action or omission in such Indemnitee's capacity as a director or officer of the Company or any of its Subsidiaries prior to the Effective Time, including in connection with the Transactions; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the reasonable expenses (including related reasonable fees of counsel feesof nationally recognized reputation) incurred or suffered by them resulting from: (a) any breach of any representation Indemnitee upon receipt of an undertaking by or warranty made by on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified (if receipt of such an undertaking is required under applicable Law). Parent and the Supplier in or pursuant to this Agreement; (b) any default Surviving Corporation shall be entitled, but not obligated to, participate in the performance defense and settlement of any of the covenants or agreements made by the Supplier in this Agreementsuch matter; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that Parent and the Supplier Surviving Corporation shall have no obligation not be liable for any settlement agreed to indemnify ENBC or effected without Parent's and the Surviving Corporation's written consent (which consent shall not be unreasonably withheld or delayed) upon reasonable prior notice and an opportunity to participate in the discussions concerning such settlement; and provided, further, that Parent and the Surviving Corporation shall not be obligated pursuant to this Section 5.8 to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnitees) for all Indemnitees in any ENBC Subsidiary or ENBC Franchisee jurisdiction with respect to any claim or single action except to the extent that two or more of such claim or action is attributable Indemnitees shall have an actual conflict of interest in such action. Notwithstanding anything to the alterationcontrary contained in this Section 5.8(b) or elsewhere in this Agreement, handling Parent shall not settle or misbranding of Products after they have been delivered to ENBC compromise or any ENBC Subsidiary or ENBC Franchisee or is attributable consent to the use by 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 Section 5.8(b) unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnitees from all liability arising out of such claim, action, suit, proceeding or investigation.
(c) Parent will provide, or cause the Supplier Surviving Corporation to provide, for a period of not less than six years after the Effective Time, the Indemnitees who are insured under the Company's existing directors' and officers' insurance and indemnification policy identified in Section 5.8(c) of the FormulationsCompany Schedule (the "Existing D&O 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 D&O Policy or, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthif substantially equivalent insurance coverage is unavailable, the sale of food and drugs, and the safe conduct of business), best available coverage; provided, however, that the Supplier shall have no (i) Parent's obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to maintain the extent D&O Insurance will be deemed fully satisfied if the Existing D&O Policy remains in full force and effect throughout such claim or action is attributable to the alterationsix-year period, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (aii) in the event ENBC or that, for any ENBC Subsidiary or ENBC Franchisee is obligated reason, the Existing D&O Policy does not remain in effect throughout such six-year period, Parent and the Surviving Corporation shall not be required to make indemnity payments under any pay an aggregate amount of premiums for replacement D&O Insurance for such agreement resulting from any six-year period in excess of the matters described amount set forth in clauses (aSection 5.8(c) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) Company Schedule (the "Supplier CGLCap Amount"); and (iii) if the aggregate amount of premiums of such replacement D&O Insurance for such six-year period exceed the Cap Amount, Parent or the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for an aggregate cost not exceeding the Cap Amount.
(d) The Indemnitees to whom this Section 5.8 applies shall be third party beneficiaries of this Section 5.8. The provisions of this Section 5.8 are intended to be for the benefit of each Indemnitee, his heirs and his representatives.
Appears in 1 contract
Samples: Merger Agreement (Broadvision Inc)
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, to the fullest extent permitted under applicable Laws, Parent shall, and shall cause the Surviving Entity to, (i) indemnify ENBC and hold harmless each Indemnified Person against any reasonable costs or expenses (including reasonable attorneys’ fees and all ENBC Subsidiaries other reasonable costs, expenses and ENBC Franchisees forobligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and hold ENBC binding costs, as well as telecommunications, postage and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstcourier charges) paid or incurred in connection with investigating, all expensesdefending, 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, costsclaims, deficienciesdamages or liabilities, liabilities penalties and damages amounts paid in settlement (including related counsel fees) incurred all interest, assessments and other charges paid or suffered by them resulting from: (a) any breach payable in connection with or in respect of any representation thereof) in connection with any actual or warranty made threatened Proceeding, and, upon receipt by Parent of an undertaking by or on behalf of the Supplier 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, provide advancement of expenses with respect to each of the foregoing to, all Indemnified Persons and (ii) honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the Organizational Documents of the Partnership and the General Partner immediately prior to the Effective Time, and ensure that the Organizational Documents of the Partnership and the General Partner or any of their respective successors or assigns, if applicable, shall, for a period of six years following the 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 Partnership and the General Partner than are presently set forth in such Organizational Documents. Any right of an Indemnified Person pursuant to this Agreement; Section 6.6(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent, the Partnership and the General Partner and their respective successors and assigns.
(b) any default The Surviving Entity shall maintain in effect for a period of six years following the performance Effective Time 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 Entity may substitute therefor policies with reputable carriers of any of at least the covenants or agreements made by same coverage containing terms and conditions that are no less favorable to the Supplier in this AgreementIndemnified Persons); (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that in no event shall the Supplier Surviving Entity be required to expend pursuant to this Section 6.6(b) more than an amount per year 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 shall have obtain the maximum amount of such insurance as is available for the Maximum Amount. If the Partnership in its sole discretion elects, then, in lieu of the obligations of the Surviving Entity under this Section 6.6(b), the Partnership may (but shall be under no obligation to), prior to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee the Effective Time, purchase a prepaid “tail policy” with respect to any claim acts or action omissions occurring or alleged to have occurred prior to the extent such claim Effective Time that were committed or action is attributable alleged to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use committed by the Supplier of the Formulations, Procedures and Specificationssuch Indemnified Persons in their capacity as such; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that in no event shall the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to cost of such policy exceed six times the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsMaximum Amount.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) The rights of any claim or action by Indemnified Person under this Section 6.6 shall be in addition to any consumerother rights such Indemnified Person may have under the Parent Organizational Documents, governmental agency the Organizational Documents of each of the Partnership, the General Partner, the Surviving Entity or any other third partySubsidiary of Parent or the Partnership, including any claim of infringement or violation ofindemnification agreements, or conflict withthe DLLCA or DRULPA. The provisions of this Section 6.6 shall survive the consummation of the transactions contemplated by this Agreement and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and Representatives. If Parent, the Surviving Entity and/or the General Partner, or any patent of their respective successors or trade secret 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 third partyother Person, then, in each such case, to the extent such claim or action is attributable to necessary, a proper provision shall be made so that the use by successors and assigns of Parent, the Supplier Surviving Entity and/or the General Partner shall assume the obligations of Parent, the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (Surviving Entity and the right to establish the terms of any settlement) of any claim or action by any third party that could result General Partner set forth in such party having an indemnification obligation under this Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder6.6.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forExcept as provided in Section 8.13 of the QRC Disclosure Letter, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred the QELP Disclosure Letter or suffered by them resulting from: the QMLP Disclosure Letter:
(a) For six years after the Effective Time, Holdco shall indemnify and hold harmless and advance expenses to, to the greatest extent permitted by Applicable Laws, the individuals who at or prior to the Effective Time were officers and directors of QRC, QELP and QMLP and their Subsidiaries and each person who at or prior to the Effective Time is serving or has served at the request of such Party as a director, officer, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”) against all losses, claims, damages, liabilities, costs or expenses (including attorneys’ fees), judgments, fines, penalties and amounts paid in settlement in connection with any breach claim, action, suit, proceeding or investigation arising out of or pertaining to all acts or omissions (or alleged acts or omissions) by them in their capacities as such or taken at the request of QRC, QELP and QMLP at any time prior to the Effective Time (whether commenced, claimed or asserted before or after the Effective Time). Holdco will honor all indemnification agreements, expense advancement and exculpation provisions with the individuals who at or prior to the Effective Time were Indemnified Parties (including under their organizational documents) in effect as of the date hereof in accordance with the terms thereof. Each of QRC, QELP and QMLP has disclosed to the other two parties all such indemnification agreements prior to the date hereof. In the event of any representation such claim, action, suit, proceeding or warranty made investigation (an “Action”), (i) Holdco shall cause its Subsidiaries to pay, as incurred, the fees and expenses of counsel selected by the Supplier Indemnified Party, which counsel shall be reasonably acceptable to Holdco, in advance of the final disposition of any such Action to the fullest extent permitted by Applicable Laws, and, if required, upon receipt of any undertaking required by Applicable Laws, and (ii) Holdco will, and will cause its Subsidiaries to, cooperate in the defense of any such matter; provided, however, neither Holdco nor its Subsidiaries shall be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed), and provided further that neither Holdco nor its Subsidiaries shall be obligated pursuant to this Agreement; (bSection 8.13(a) to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any default single Action, unless, in the performance good faith judgment of any of the covenants Indemnified Parties, there is or agreements made may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each similarly situated group.
(b) For a period of six years after the Effective Time, Holdco shall cause to be maintained officers’ and directors’ liability insurance covering all officers and directors of QRC, QELP and QMLP who are, or at any time prior to the Effective Time were, covered by the Supplier existing officers’ and directors’ liability insurance policies of QRC, QELP or QMLP (“Existing D&O Insurance”) on terms substantially no less advantageous to such persons than such existing insurance, provided that Holdco shall not be required to pay annual premiums in excess of 300% of the aggregate of the last annual premium paid by QRC, QELP and QMLP prior to the date hereof (the amount of which premium is set forth in Section 8.13 of the applicable Disclosure Letter), but in such case shall purchase as much coverage as reasonably practicable for such amount. Holdco shall have the right to cause coverage to be extended under the Existing D&O Insurance by obtaining a six-year “tail” policy on terms and conditions no less advantageous than the Existing D&O Insurance, and such “tail” policy shall satisfy the provisions of this Agreement; Section 8.13(b).
(c) The rights of each person identified in Section 8.13(a) shall be in addition to any claim other rights such person may have under the organizational documents of QRC, QELP or action by any consumer QMLP or any other third party arising out of their Subsidiaries, under Applicable Laws or otherwise. The provisions of this Section 8.13 shall survive the consummation of the production Mergers and expressly are intended to benefit each such person.
(d) In the event Holdco or sale any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the Products by continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then proper provision shall be made so that the Supplier successors and assigns of Holdco shall assume the obligations set forth in this Section 8.13.
(e) The parties agree that the rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any claims action or actions for personal injury suit, in the articles or certificate of incorporation and bylaws (or similar governing documents, including partnership agreements and limited liability company agreements) and any products liability claims or action)indemnification agreement of QRC, QMLP, QELP and their Subsidiaries with respect to matters occurring through the Effective Time, shall survive the Mergers and shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that the Supplier shall have no obligation all rights to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with indemnification and advancement of expenses in respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation Action pending or warranty asserted or claim made by ENBC in or pursuant to this Agreement; (b) any default in within such period shall continue until the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel disposition of such party's selection, that each party will promptly give the other party written notice Action or resolution of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderclaim.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 (a) The Supplier agrees Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation and Bylaws, respectively, of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company or any of its subsidiaries. After the Closing, the Surviving Corporation shall, to the fullest extent permitted under applicable Law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and former director and officer of the Company and each of its subsidiaries at or prior to the Effective Time (collectively, the "INDEMNIFIED PARTIES") against all ENBC Subsidiaries costs and ENBC Franchisees that purchase Products harmless from and againstexpenses (including attorneys' fees), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (including related counsel fees) incurred whether arising before or suffered by them resulting from: (a) after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any breach of any representation action or warranty made by omission, in his or her capacity as an officer, director, employee, fiduciary or agent, occurring on or before the Supplier in or pursuant Effective Time, to this Agreement; (b) any default the same extent as provided in the performance Certificate of any Incorporation or Bylaws of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer Company, or any other third party arising out applicable contract or agreement, in effect on the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the production or sale Surviving Corporation shall pay the reasonable fees and expenses of the Products counsel selected by the Supplier Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received (including provided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification) and (ii) the Surviving Corporation shall cooperate in the defense of any claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that the Supplier Surviving Corporation shall have no obligation not be liable for any settlement effected without the Surviving Corporation's written consent (which consent shall not be unreasonably withheld or delayed); and provided, further, that the Surviving Corporation shall not be obligated pursuant to indemnify ENBC or this Section 5.4(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 ENBC Subsidiary or ENBC Franchisee jurisdiction with respect to any claim or single action except to the extent that two or more of such Indemnified Parties shall have conflicting interests in the outcome of such action; and provided, further, that, in the event that any claim for indemnification is asserted or made within six (6) years after the Effective Time, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.
(b) The Surviving Corporation shall either (i) cause to be obtained at 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 action is attributable events that occurred on or prior to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsEffective Time; or (dii) any claim or action brought by any federalmaintain in effect for six years from the Effective Time, stateif available, local or foreign governmental agency in connection with the production or sale of the Products current directors' and officers' liability insurance policies maintained by the Supplier Company (including without limitation any claim provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions that are not less favorable) with respect to matters occurring on or action under any law or regulation relating prior to public health, the sale of food and drugs, and the safe conduct of business), Effective Time; provided, however, that in no event shall the Supplier shall have no obligation Surviving Corporation, in order to indemnify ENBC or obtain the insurance policies required under this Section 5.4(b), be required to expend in any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent year during such claim or action is attributable to the alteration, handling or misbranding six (6) year period more than 300% of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use current annual premiums paid by the Supplier Company for current comparable insurance coverage; provided, however, that in the event of an expiration, termination or cancellation of such current policies, the Surviving Corporation shall be required to obtain as much coverage as is possible under substantially similar policies for such maximum annual amount. The Company represents that such current annual premium amount is set forth in Section 5.4(b) of the Formulations, Procedures and SpecificationsCompany Disclosure Schedule.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other third party, including any claim person and shall not be the continuing or surviving corporation or entity of infringement such consolidation or violation ofmerger, or conflict with(ii) transfers all or substantially all of its properties and assets to any person, any patent or trade secret then, and in each such case, proper provision shall be made so that the successors and assigns of any third party, the Surviving Corporation shall succeed to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or obligations set forth in this Section 5.4.
(d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use The provisions of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to this Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements 5.4 (i) providing are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLany such person may have by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Coulter Jamie B)
Indemnification and Insurance. 11.1 (a) The Supplier agrees Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation and Bylaws, respectively, of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, or employees, of the Company or any of the Company Subsidiaries. During the period ending on the sixth anniversary of the Effective Time, Parent and the Surviving Corporation shall, jointly and severally, to the fullest extent that the Company would have been permitted to do so under applicable Law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless each present and former director and officer of the Company and each of the Company Subsidiaries (collectively, the "Indemnified Parties") against all ENBC Subsidiaries costs and ENBC Franchisees that purchase Products harmless from and againstexpenses (including reasonable attorneys' fees), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (including related counsel fees) incurred whether arising before or suffered by them resulting from: (a) any breach of any representation after the Effective Time), whether civil, criminal, administrative or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party investigative, arising out of the production or sale pertaining to any action or omission, in his or her capacity as an officer, director, or employee of the Products Company, occurring on or before the Effective Time (a "Covered Proceeding"). In the event of any such claim, action, suit, proceeding or investigation, Parent or the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Supplier Indemnified Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received (including any claims or actions for personal injury and any products liability claims or actionprovided the applicable Indemnified Party provides an undertaking to repay all advanced expenses if it is finally judicially determined that such Indemnified Party is not entitled to indemnification), ; provided, however, that neither Parent nor the Supplier Surviving Corporation shall have no obligation be liable for any settlement effected without Parent's or the Surviving Corporation's written consent (which consent shall not be unreasonably withheld or delayed); provided, further, that Parent and the Surviving Corporation shall not be required to indemnify ENBC agree to the entry of any judgment or settlement that provides for injunctive or other non-monetary relief affecting the Parent, the Surviving Corporation or any ENBC Subsidiary or ENBC Franchisee of their respective subsidiaries. Neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3(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 with respect to such Covered Proceeding 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 Parent shall pay the fees of such additional counsel required by such conflict; provided, that, in the event that any claim for indemnification is asserted or action made within such six-year period, all rights to the extent indemnification in respect of such claim or action is attributable shall continue until the disposition of such claim. Any Indemnified Party that desires to the alteration, handling or misbranding claim indemnification under this Section 5.3(a) upon becoming aware of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, such Covered Proceeding shall promptly notify Parent and the safe conduct of business)Surviving Corporation.
(b) Immediately after the Effective Time, provided, however, that the Supplier Parent shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures obtained and Specifications.
11.2 ENBC agrees to indemnify the Supplier paid for, and to hold the Supplier harmless from there shall be in effect, a tail policy of (i) directors' and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, officers' liability insurance and (bii) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general corporate counsel liability insurance covering the SupplierCompany's premises Senior Vice President, General Counsel and operationsSecretary, including premises and operations coverage, ownerin respect of acts or omissions occurring prior to the Effective Time covering each of those Persons who are covered by (x) the Company's and contractorany Company Subsidiary's protective coveragedirectors' and officers' liability insurance policy and (y) corporate counsel liability insurance, products and completed operations coverageas of the date hereof for a period of six years commencing as of the Effective Time, full blanket contractual it being understood that, if requested in writing by Parent, the Company shall, prior to the Effective Time, obtain such extended reporting period coverage and broad form property damage coverage, with a combined single limit under its existing insurance programs (to be effective as of $9,000,000 naming ENBC as an additional insured and containing endorsements the Effective Time).
(c) In the event Parent or the Surviving Corporation or any of their respective successors or assigns (i) providing 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 Supplier's comprehensive general liability coverage successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.3.
(including products liabilityd) Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.3.
(e) The provisions of this Section 5.3 (i) are intended to be for the "Supplier CGLbenefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier Except to the extent arising from the negligence or willful misconduct of Landlord or its agents or employees, Tenant agrees to indemnify ENBC and save harmless Landlord and Landlord’s partners, members, shareholders, officers, directors, managers, employees, agents and contractors and any Holder (collectively, the “Indemnitees”) from and against all ENBC Subsidiaries claims, losses, cost, damages, liability or expenses of whatever nature arising: (i) from any accident, injury or damage whatsoever to any person, or to the property of any person, occurring in or about the Premises; (ii) from any accident, injury or damage whatsoever to any person, or to the property of any person, occurring outside of the Premises but on or about the Project, where such accident, damage or injury results or is claimed to have resulted from the negligence or willful misconduct on the part of Tenant or Tenant’s agents, employees, contractors, invitees or sublessees; or (iii) the use or occupancy of the Premises or of any business conducted therein or any thing or work whatsoever done or any condition created (other than by Landlord) in or about the Premises, and, in any case, occurring after the Term Commencement Date (or such earlier date as of which Tenant takes possession of the Premises) until the expiration of the Term of this Lease and ENBC Franchisees for, thereafter so long as Tenant or any party acting under Tenant is in occupancy of any part of the Premises. This indemnity and hold ENBC and harmless agreement shall include indemnity against all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficienciesdamages, expenses and liabilities incurred in or in connection with any such claim or any proceeding brought thereon, and damages the defense thereof, including, without limitation, reasonable attorneys’ fees and costs at both the trial and appellate levels. In addition to the foregoing, Landlord may make all repairs and replacements to the Project and Premises resulting from acts or omissions of Tenant’s employees, agents, independent contractors or invitees or any other persons acting under Tenant (including related counsel feesdamage and breakage occurring as a result of work performed by or for Tenant and when Tenant’s property is being moved into or out of the Project) incurred and Landlord may recover all costs and expenses thereof from Tenant as additional charges. The provisions of this paragraph shall survive the expiration or suffered earlier termination of this Lease. Throughout the Term (and such further time as Tenant or any person claiming through Tenant enters onto or occupies any part of the Premises) Tenant shall maintain in a responsible company or companies approved by them resulting from: Landlord and in form satisfactory to Landlord, (a) a policy of commercial general liability and property damage insurance (including broad form contractual liability, independent contractor’s hazard and completed operations coverage) insuring the Indemnitees, any breach of any representation other parties reasonably designated by Landlord, and Tenant, as their respective interests may appear, against all claims, demands or warranty made actions for injury, death, and property damage, in amounts not less than those specified in Section 1.1 for General Liability Insurance (as such amounts may, from time to time, be increased by Landlord in its reasonable discretion for tenants leasing premises similar to the Supplier Premises), together with workers compensation insurance in or pursuant to this Agreement; statutorily required amounts covering all Tenant employees working in the Premises, and (b) “all risk” property insurance on a “replacement cost” basis insuring against loss or damage to all Tenant Property and Tenant Work. Tenant may satisfy any default insurance requirements by including the Premises in a so-called “blanket” or “umbrella” insurance policy, provided that the amount of coverage allocated to the Premises pursuant to a “per location” endorsement fulfills the requirements set forth herein. All insurance required to be maintained by Tenant under this Section 5.5 shall be provided by insurance companies qualified and licensed to conduct business in the performance Commonwealth of Massachusetts with a rating of not less than A:X in the most current issue of Best’s Insurance Reports (or such other rating as Landlord may, from time to time, reasonably require). Each such policy shall be written on an “occurrence” basis and shall include a waiver of subrogation clause or endorsement in accordance with Section 8.12. Each such policy may have a deductible amount (which shall be specified on the insurance certificate provided to Landlord) reasonably approved by Landlord. Each such policy shall be primary to, and not contributory with, any of insurance carried by Landlord or the covenants Landlord’s Managing Agent, whose insurance shall be considered excess only. Each such policy shall provide that it will not be subject to cancellation, termination, or agreements made change except after at least 30 days’ prior written notice to the Indemnitees and other parties designated by Landlord to the Supplier extent that the same is reasonably available in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), insurance industry provided, however, that if such notice is not provided by any insurance company, then Tenant shall be responsible for providing such notice to Landlord. A duly executed certificate or certificates for such policies in form satisfactory to Landlord, together with satisfactory evidence of the Supplier payment of the premium thereon if requested by Landlord, shall have no obligation be deposited with Landlord and other parties designated by Landlord at the beginning of the Term and, upon renewals of such policies, not less than ten (10) days prior to indemnify ENBC the expiration of the term of such coverage. Tenant hereby authorizes Landlord, at Landlord’s option, in the event Tenant fails to perform the repair or restoration work under Section 6.1 and upon reasonable prior notice, to collect, adjust and compromise any ENBC Subsidiary or ENBC Franchisee claim under such insurance with respect to any claim loss or action damage to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or Tenant Work (dbut not Tenant Property) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default located in the performance of Premises. If Tenant fails to comply with any of the foregoing requirements within applicable notice and cure periods, Landlord may obtain such insurance on behalf of Tenant and may keep the same in effect, and Tenant shall pay Landlord, as additional charges, the premium cost thereof upon demand. The covenants or agreements made by ENBC in of this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to paragraph shall survive the extent such claim or action is attributable to the use by the Supplier expiration of the Formulations, Procedures and Specifications Term or is attributable to the alteration, handling or misbranding earlier termination of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7this Lease.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) The Purchaser will honor the Surviving Corporation's performance of all contracts, agreements and commitments of the Company or any breach of its subsidiaries, including those reflected in their Articles of Incorporation and Bylaws, which indemnify any representation officer or warranty director of the Company or any of its subsidiaries, as disclosed on Schedule 6.06(b), against claims made by against them arising from their service, but only to the Supplier in extent that such contract, agreement or pursuant to commitment was entered into before the date of this Agreement; Agreement and is listed on Schedule 6.06.
(b) Any indemnified party wishing to claim indemnification under this Section, upon learning of any default such action, suit, claim, proceeding or investigation, shall promptly notify the Purchaser and the Surviving Corporation thereof and the Purchaser and the Surviving Corporation shall cooperate in the performance defense of any of the covenants or agreements made by the Supplier in this Agreementsuch matter; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that any failure so to notify the Supplier shall have no Purchaser and the Surviving Corporation of any obligation to indemnify ENBC such indemnified party or of any ENBC Subsidiary other obligation imposed by this Section shall not affect such obligations unless such failure to so notify materially prejudices the rights of the Purchaser and the Surviving Corporation to defend any such action, suit, claim, proceeding or ENBC Franchisee investigation. The indemnified parties as a group shall retain only one counsel in each jurisdiction to represent them with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationssingle action; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, in the event that there is, under applicable standards of professional conduct, a conflict between the Supplier shall have no obligation to indemnify ENBC positions of any two or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to more indemnified parties, the extent Purchaser and such claim or action is attributable to indemnified parties may retain, at the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier expense of the FormulationsPurchaser and the Surviving Corporation, Procedures and Specificationsas the case may be, such number of additional counsel as are necessary to eliminate all conflicts of the type referred to above.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) In the event any claim is made against directors, officers or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier employees of the FormulationsCompany that is covered or potentially covered by insurance, Procedures the Surviving Corporation and Specifications the Purchaser shall do nothing that would in their reasonable discretion forfeit, jeopardize, restrict or is attributable to limit the alteration, handling or misbranding insurance coverage available for that claim until the final disposition of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or that claim.
(d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to The Surviving Corporation and the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties Purchaser agree that each party shall have until six years from the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 date hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, Articles and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any Bylaws of the matters described Surviving Corporation will not be amended to reduce or limit the rights to indemnity currently afforded thereunder. To the knowledge of the Company, there are no pending or threatened claims which are reasonably anticipated to result in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofa claim for indemnification.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 The Supplier 10.1 Subject to the conditions and provisions of this section, each Party (the “Indemnifying Party”) hereby agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forindemnify, defend, and hold ENBC harmless the other Party and its officers, directors, shareholders, employees, and agents (the “Indemnified Parties”) from and against any and all ENBC Subsidiaries losses, damages, claims, liabilities, and ENBC Franchisees that purchase Products harmless from expenses (including without limitation attorneys’ fees and costs), asserted against, all expensesresulting to, lossesimposed upon or incurred by any of the Indemnified Parties, costsdirectly or indirectly, deficiencies, liabilities and damages (including related counsel fees) incurred by reason of or suffered by them resulting from: (a) any misrepresentation or breach of any representation or warranty warranty, or noncompliance with any conditions or other agreements, given or made by the Supplier Indemnifying Party in this Restated Agreement or pursuant to in any document furnished by or on behalf of the Indemnifying Party under this Restated Agreement; or (b) any default in the performance of any of the covenants negligent or agreements made intentional act or omission by the Supplier in this Agreement; (c) any claim Indemnifying Party or action by any consumer its officer, employee, or any other third party arising out of agent. MacroMed shall also indemnify the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee Genex Indemnified Parties with respect to any product liability claim or action relating to the extent such claim Product.
10.2 One or action is attributable more of the Indemnified Parties shall give written notice to the alteration, handling or misbranding of Products after they have been delivered to ENBC or Indemnifying Party promptly upon receipt by any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the FormulationsIndemnified Parties of any such claim, Procedures and Specifications; or (d) any claim or action brought by any federalloss, statedamage, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugsliability, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee expense with respect to any claim or action which indemnity is sought.
10.3 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER UNDER THIS RESTATED AGREEMENT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.4 For period specified in Section 6.5 above, MacroMed covenants and agrees to the extent maintain with a reputable insurance company standard products liability insurance, in a reasonable amount, with Genex as an additional-named insured. MacroMed shall supply proof of such claim or action is attributable insurance to the alterationGenex from time to time, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use as requested in writing by the Supplier Genex.
10.5 The rights, covenants, and obligations of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify Parties under this Section 10 will survive the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred termination or suffered by the Supplier resulting from: (a) any breach cancellation of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC (a) Licensee shall indemnify, defend and hold harmless HJF and its current and former directors, board members, trustees, officers, employees, and agents and their respective successors, heirs and assigns (collectively, the “Indemnitees”), from and against any and all ENBC Subsidiaries and ENBC Franchisees forthird party claims, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, lossesliabilities, costs, expenses, damages, deficiencies, liabilities and damages losses or obligations of any kind or nature (including reasonable attorneys’ fees and other costs and expenses of litigation) (collectively “Claims”) based upon, arising out of, or otherwise relating to Claims that arise out of or are related counsel feesto (i) incurred Licensee’s manufacture and sale of Licensed Product, (ii) the failure of Licensee to comply with all laws, rules and/or regulations of any jurisdiction applicable to this Agreement; or suffered by them resulting from: (aiii) any the breach of any representation or warranty made by the Supplier Licensee in or this Agreement. HJF will promptly notify Licensee within a reasonable time after it becomes aware of any Claim that may be subject to indemnification pursuant to this Agreement; (b) any default in Section and will cooperate with and authorize Licensee to carry out the performance sole management and defense of any of such Claim. In the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation event HJF decides to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency employ its own separate counsel in connection with the production or sale sole management and defense by Licensee of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthClaim, the sale employ of food such counsel shall be at HJF’s sole expense. HJF will not compromise or settle any claim, action or proceeding subject to indemnification pursuant to this Section without the prior written approval of Licensee.
(b) HJF shall indemnify, defend and drugshold harmless the Licensee and its current and former directors, board members, trustees, officers, employees, and agents and their respective successors, heirs and assigns (collectively, the safe conduct of business“Licensee Indemnitees”), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and againstagainst any and all third party claims, all expenses, lossesliabilities, costs, expenses, damages, deficiencies, liabilities and damages losses or obligations of any kind or nature (including reasonable attorneys’ fees and other costs and expenses of litigation) (collectively “Claims”) based upon, arising out of, or otherwise relating to Claims that arise out of or are related counsel fees) incurred or suffered by to the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC HJF in or this Agreement. Licensee will promptly notify HJF within a reasonable time after it becomes aware of any Claim that may be subject to indemnification pursuant to this Agreement; (b) any default Section and will cooperate with and authorize HJF to carry out the sole management and defense of such Claim. In the event Licensee decides to employ its own separate counsel in connection with the performance of any sole management and defense by HJF of the covenants Claim, the employ of such counsel shall beat Licensee’s sole expense. Licensee will not compromise or agreements made by ENBC in settle any claim, action or proceeding subject to indemnification pursuant to this Agreement; Section without the prior written approval of HJF.
(c) any claim or action by any consumerThe indemnifying Party shall, governmental agency or any other third partyat its own expense, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, provide attorneys reasonably acceptable to the extent such claim other to defend against any actions brought or action is attributable filed with respect to the use by the Supplier subject of the Formulationsindemnity contained herein, Procedures and Specifications whether or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or not such actions are rightfully brought.
(d) Beginning at the time any claim such product, process or action service is being commercially distributed or sold (other than for the purpose of obtaining regulatory approvals) by Licensee or by any third party alleging infringement sublicensee or violation ofagent of Licensee, Licensee shall, at its sole cost and expense, procure and maintain commercial general liability insurance in amounts not less than $[***] per incident and $[***] annual aggregate and naming the Indemnitees as additional insureds. During clinical trials of any such product, process, or conflict withservice, any trademarksLicensee shall, trade names at its sole cost and expense, procure and maintain commercial general liability insurance in such equal or trade dresslesser amount as HJF 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 in excess of $[***] annual aggregate) such self-insurance program must be acceptable to HJF in its sole discretion. The minimum amounts of insurance coverage required shall not be construed to create a limitation of Licensee’s liability with respect to its indemnification under this Agreement.
(e) Licensee shall provide HJF with written evidence of such insurance upon request of HJF. Licensee shall provide HJF with written notice at least [***] days prior to the extent cancellation, non-renewal, or material change in such claim or action is attributable to the use of trademarksinsurance; if Licensee does not obtain replacement insurance providing comparable coverage within such [***] day period, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party HJF shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment terminate this Agreement in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d10.2(c), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (af) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive Licensee shall maintain such commercial general liability insurance covering beyond the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit expiration or termination of $9,000,000 naming ENBC as an additional insured and containing endorsements this Agreement (i) providing during 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 period after the Supplier's comprehensive general liability coverage period referred to in (including products liabilityf)(i) (the "Supplier CGLabove, which period in no event shall be less than [***] years.
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Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, to indemnify ENBC the fullest extent permitted by applicable Law, honor and fulfill in all respects the obligations of the Company and its Subsidiaries under (i) the certificate of incorporation and bylaws (or similar organizational documents) of the Company and its Subsidiaries in effect as of the date of this Agreement with respect to exculpation from liability, indemnification and advancement and reimbursement of expenses and (ii) any and all ENBC indemnification agreements between the Company or any of its Subsidiaries and ENBC Franchisees forany of their respective present or former directors, officers and employees (and any person who becomes a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time).
(b) For a period of six years from and after the Effective Time, Parent shall, and Parent shall cause the Surviving Corporation to, (A) to the fullest extent permitted by applicable Law, jointly and severally indemnify and hold ENBC harmless each current and former director, officer or employee of the Company or any of its Subsidiaries (and any person who becomes a director, officer or employee of the Company or any of its Subsidiaries prior to the Effective Time) and each individual who serves or served at the request of the Company or any of its Subsidiaries as a Representative of another Person (including any employee benefit plan) (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstclaims, all expensesliabilities, losses, costsdamages, deficienciesjudgments, liabilities and damages fines, penalties, costs (including related counsel feesamounts incurred by such Indemnitee in settlement or compromise) incurred and expenses (including reasonable fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative or suffered investigative), whenever asserted, based on or arising out of, in whole or in part, (1) the fact that an Indemnitee is or was a director, officer or employee of the Company or such Subsidiary or serves or has served at the request of the Company or such Subsidiary as a Representative of another Person (including any employee benefit plan) or (2) acts or omissions by them resulting from: an Indemnitee in the Indemnitee’s capacity as a director, officer or employee of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (aincluding in connection with serving at the request of the Company or such Subsidiary as a Representative of another Person (including any employee benefit plan)), in each case under clause (1) or (2), at, or at any breach 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, advancement or reimbursement right of any representation Indemnitee) and (B) assume (in the case of the Surviving Corporation, in the Merger without any further action) all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification, advancement and reimbursement of expenses and exculpation from liabilities for acts or warranty made omissions occurring at or prior to the Effective Time as provided in the Company Organizational Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, unless otherwise required by Law, the Supplier certificate of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to exculpation from liability, indemnification and advancement and reimbursement of expenses of directors, officers and employees and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, pay, promptly after receipt by Parent of a written request by an Indemnitee, all costs and expenses of such Indemnitee in connection with matters for which such Indemnitee is eligible to be indemnified pursuant to this Agreement; (bSection 5.06(a) any default in the performance of any advance of the covenants or agreements made by final disposition of such matter (including any Action in connection with enforcing the Supplier indemnity and other obligations referred to in this Agreement; Section 5.06), subject to receipt of an undertaking to repay such advances if it is ultimately determined by a court of competent jurisdiction that such Indemnitee is not entitled to indemnification under this Section 5.06(a).
(c) any claim The Company shall purchase, at or action by any consumer or any other third party arising out prior to the Closing, in consultation with Parent, a six-year prepaid “tail policy” on terms and conditions providing at least substantially equivalent benefits in the aggregate as the current policies of the production or sale of the Products directors’ and officers’ liability insurance maintained by the Supplier (including any claims or actions for personal injury Company and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee its Subsidiaries with respect to any claim matters existing or action occurring prior to the extent Effective Time, covering without limitation the Transactions. Such prepaid “tail policy” shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 5.06(c) and the Surviving Corporation shall use its reasonable best efforts to cause such claim or action is attributable policy to the alterationbe maintained in full force and effect, handling or misbranding for its full term, and to honor all of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or its obligations thereunder.
(d) 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 claim other rights to indemnification, reimbursement or action brought contribution that any such individual may have under the Company Organizational Documents, by contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 5.06 shall not be terminated or modified in such a manner as to adversely affect the rights of any federalIndemnitee to whom this Section 5.06 applies unless (A) such termination or modification is required by applicable Law or (B) 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).
(e) In the event that (i) Parent, statethe Surviving Corporation or any of their respective successors or assigns (A) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (B) transfers or conveys all or substantially all of its properties and assets to any Person, local or foreign governmental agency (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in connection with each such case, proper provision shall be made so that the production successors and assigns of Parent or sale the Surviving Corporation shall assume all of the Products by the Supplier obligations thereof set forth in this Section 5.06.
(including without limitation f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any claim or action rights to directors’ and officers’ insurance claims under any law policy that is or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.06 is not prior to or in substitution for any such claims under such policies.
(g) Parent’s and the Surviving Corporation’s obligations under this Section 5.06 shall continue in full force and effect for a period of six years from the Effective Time; provided that if any threatened or actual litigation, claim or action proceeding relating to any acts or omissions covered under this Section 5.06 (each, a “Claim”) (whether arising before, at or after the Effective Time) is brought against an Indemnitee on or prior to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier sixth anniversary of the FormulationsEffective Time, Procedures the provisions of this Section 5.06 shall continue in effect until the full and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel final resolution of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderClaim.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (PhenomeX Inc.)
Indemnification and Insurance. 11.1 The Supplier 32 A. CONTRACTOR agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forindemnify, defend with counsel approved in writing by COUNTY, 33 which approval shall not be unreasonably withheld, and hold ENBC COUNTY, its elected and all ENBC Subsidiaries appointed 34 officials, officers, directors, employees, agents and ENBC Franchisees that purchase Products those special districts and agencies for which 35 COUNTY’s Board of Supervisors acts as the governing Board (“COUNTY INDEMNITEES”) harmless 36 from and against, all expenses, losses, costs, deficienciesany claims, liabilities obligations, judgments, causes of actions, costs and damages expenses (including related counsel 37 reasonable attorneys’ fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party which are asserted against COUNTY arising out of the production or sale use of the Products System by 1 COUNTY or arising out of or resulting from CONTRACTOR’s performance under this Agreement, 2 where such injury or claim is caused by the Supplier (including any claims negligence, recklessness, or actions for personal injury and any products liability claims willful misconduct of 3 CONTRACTOR, its officers, employees or action)agents, provided, however, except that the Supplier CONTRACTOR shall have no obligation not be obligated to 4 indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action COUNTY INDEMNITEES under this sentence to the extent such that the claim or action is attributable arose solely from 5 COUNTY’s failure to use the alterationSystem in accordance with the Documentation and applicable standards of 6 good clinical practice. CONTRACTOR’S obligation under the intellectual property indemnification set 7 forth in Subparagraph XIII.X. herein shall apply to all third party intellectual property infringement 8 claims, handling or misbranding liabilities obligations, judgments, causes of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to actions, costs and expenses (include reasonable 9 attorneys’ fees) described in that Subparagraph XIII.X. which are asserted against COUNTY arising out 10 of the use of the System by COUNTY regardless of CONTRACTOR’S, or its officers’, employees’ or 11 agents’, negligence or misconduct. If judgment is entered against CONTRACTOR and COUNTY by a 12 court of competent jurisdiction because of the concurrent active negligence, recklessness, or willful 13 misconduct of COUNTY or COUNTY INDEMNITEES, CONTRACTOR and COUNTY agree that 14 liability will be apportioned as determined by the Supplier court. Neither party shall request a jury 15 apportionment.
16 B. COUNTY agrees to indemnify, defend and hold CONTRACTOR, its officers, employees, 17 agents, directors, members, shareholders and/or affiliates harmless from any claims, liabilities, 18 obligations, judgments, causes of actions, costs and expenses (including reasonable attorney’s fees) 19 which are asserted against CONTRACTOR arising out of the Formulationsuse of the System by COUNTY or arising 20 out of or resulting from COUNTY’s performance under this Agreement where such injury or claim is 21 caused by the negligence, Procedures recklessness, or willful misconduct of COUNTY, its officers, employees or 22 agents, except that COUNTY shall not be obligated to indemnify CONTRACTOR, its officers, 23 employees, agents, directors, members, shareholders and/or affiliates under this sentence if COUNTY 24 has used the System in accordance with the Documentation and Specifications; applicable standards of good clinical 25 practice. If judgment is entered against COUNTY and CONTRACTOR by a court of competent 26 jurisdiction because of the concurrent active negligence, recklessness, or (d) willful misconduct of 27 CONTRACTOR or its officers, employees, agents, directors, members, shareholders and/or affiliates, 28 COUNTY and CONTRACTOR agree that liability will be apportioned as determined by the court. 29 Neither party shall request a jury apportionment.
30 C. Each party agrees to provide the indemnifying party with written notification of any claim or action brought 31 related to services provided by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or either party pursuant to this Agreement; Agreement within thirty (b30) any default in the performance calendar days 32 of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2thereof, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier indemnifying party is obligated subsequently named party to make indemnity payments the litigation, 33 each party shall cooperate with the indemnifying party in its defense.
34 D. Prior to the provision of services under any this Agreement, the CONTRACTOR agrees to purchase 35 all required insurance at CONTRACTOR’s expense, including all endorsements required herein, 36 // 37 // 1 necessary to satisfy the COUNTY that the insurance provisions of this Agreement have been complied 2 with. CONTRACTOR agrees to keep such insurance coverage in effect during the entire term of this 3 Agreement and provide Certificates of Insurance and endorsements to COUNTY.
4 E. CONTRACTOR shall ensure that all subcontractors performing work on behalf of 5 CONTRACTOR pursuant to this agreement resulting shall be covered under CONTRACTOR’s insurance as an 6 Additional Insured or maintain insurance subject to the same terms and conditions as set forth herein for 7 CONTRACTOR. CONTRACTOR shall not allow subcontractors to work if subcontractors have less 8 than the level of coverage required by COUNTY from any CONTRACTOR under this agreement. It is the 9 obligation of CONTRACTOR to provide notice of the matters described in clauses (ainsurance requirements to every subcontractor 10 and to receive proof of insurance prior to allowing any subcontractor to begin work. Such proof of 11 insurance must be maintained by CONTRACTOR through the entirety of this agreement for inspection 12 by COUNTY representative(s) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofat any reasonable time.
11.5 The Supplier represents 13 F. All self-insured retentions (SIRs) and warrants that it carries: (a) policies deductibles shall be clearly stated on the Certificate of worker's compensation and employer's liability insurance that comply with all state and federal laws14 Insurance. If no SIRs or deductibles apply, and (b) policies indicate this on the Certificate of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, Insurance with a combined single limit zero (0) 15 by the appropriate line of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that coverage.
16 G. If CONTRACTOR fails to maintain insurance acceptable to the Supplier's comprehensive general liability coverage (including products liability) (COUNTY for the "Supplier CGLfull term of 17 this Agreement, the COUNTY may terminate this Agreement.
Appears in 1 contract
Samples: Agreement for Provision of System Application and Technical Upgrade Services
Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, the Surviving Company shall and Parent shall cause the Surviving Company to (i) indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and 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” and, collectively, the “Indemnitees”) with respect to all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstclaims, all expensesliabilities, losses, costsdamages, deficienciesjudgments, liabilities and damages fines, penalties, costs (including related counsel feesamounts paid in settlement or compromise) incurred and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative or suffered 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 them resulting from: an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (aincluding in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any breach time prior to, the Effective Time (including any Action relating in whole or in part to this Agreement and the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any representation Indemnitee), to the fullest extent permitted under applicable Law, pursuant to the Company Charter and the Organizational Documents as in effect on the date of this Agreement, and following the Continuation Effective Time, in the Memorandum and Articles of Association and in any written agreement in existence as of the date of this Agreement and previously made available to Parent providing for indemnification between the Company and any 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 warranty omissions occurring at or prior to the Effective Time as provided in the Company Charter and the Organizational Documents as in effect on the date of this Agreement and, following the Continuation Effective Time, in the Memorandum and Articles of Association, and in any written agreement in existence as of the date of this Agreement providing for indemnification between the Company and any Indemnitee and previously made available to Parent. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, unless otherwise required by Law, the Memorandum and Articles of Association to contain provisions no less favorable to the Indemnitees with respect to indemnification, advancement of expenses and exculpation of the Indemnitees than are set forth as of the date of this Agreement in the Company Charter, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(b) Prior to the Effective Time, the Company shall obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby) (the “D&O Tail Policy”); provided, however that in no event shall the cost of the D&O Tail Policy exceed three-hundred percent (300%) of the annual premiums paid by the Supplier Company prior to the date hereof in respect of the D&O Insurance. If the Company for any reason fails to obtain such “tail” insurance policies as of the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date of this Agreement with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement, or pursuant to the Surviving Company shall, and Parent shall cause the Surviving Company to, purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies as of the date of this Agreement; provided, however that in no event shall the Company expend, or Parent or the Surviving Company be required to expend for such policies, an annual premium amount in excess of three-hundred percent (b300%) any default in the performance of any of the covenants or agreements made annual premiums paid by the Supplier Company prior to the date hereof in this Agreementrespect of the D&O Insurance; and, provided, further that if the premium for such insurance coverage exceeds such amount, the Surviving Company shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) The provisions of this Section 5.08 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives and (ii) in addition to, and not in substitution for, any claim other rights to indemnification or action contribution that any such individual may have under the Company Charter, by contract or otherwise. The obligations of Parent and the Surviving Company under this Section 5.08 shall not be terminated or modified in such a manner as to adversely affect the rights of any consumer Indemnitee to whom this Section 5.08 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.08 applies shall be third-party beneficiaries of this Section 5.08).
(d) In the event that Parent, the Surviving Company or any of their respective successors or assigns (i) consolidates, amalgamates with or merges into any other third party arising out Person and is not the continuing or Surviving Company or entity of such consolidation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the production obligations thereof set forth in this Section 5.08.
(e) Nothing in this Agreement is intended to, shall be construed to or sale of the Products by the Supplier (including shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee has been in existence with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC Company or any ENBC Subsidiary of its Subsidiaries for any of their respective directors, officers or ENBC Franchisee or is attributable to the use by the Supplier of the Formulationsother employees, Procedures it being understood and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, agreed that the Supplier shall have no obligation indemnification provided for in Section 5.08(a) is not prior to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under substitution for any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or claims under such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofpolicies.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 (a) The Supplier agrees Parent and the Sub agree that all rights to indemnification existing in favor of the present or former directors, officers and employees of the Company (as such) or any of its subsidiaries or present or former directors of the Company or any of its subsidiaries serving or who
(b) For a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain officers' and directors' liability insurance and fiduciary liability insurance covering the persons described in paragraph (a) of this Section 5.05 (whether or not they are entitled to indemnification thereunder) who are currently covered by the Company's existing officers' and directors' or fiduciary liability insurance policies on terms no less advantageous to such indemnified parties than such existing insurance.
(c) The Surviving Corporation shall indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless (and all ENBC Subsidiaries shall advance expenses to), to the fullest extent permitted under applicable law, each director, officer, employee, fiduciary and ENBC Franchisees that purchase Products harmless from agent of the Company or any Subsidiary of the Company including, without limitation, officers and againstdirectors, all expensesserving as such on the date hereof against any costs and expenses (including reasonable attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages (including related counsel fees) incurred amounts paid in settlement in connection with any claim, action, suit, proceeding or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant investigation relating to this Agreement; (b) any default in the performance of any of the covenants transactions contemplated hereby, and in the event of any such claim, action, suit, proceeding or agreements made investigation (whether arising before or after the Effective Time), (i) the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Supplier indemnified parties, promptly as statements therefor are received and (ii) the parties hereto will cooperate in this Agreement; (c) the defense of any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action)such matter, provided, however, that the Supplier Surviving Corporation shall have no obligation to indemnify ENBC or not be liable for any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alterationsettlement effected without its prior written consent, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or which consent shall not unreasonably be withheld.
(d) any claim or action brought The Surviving Corporation shall pay all reasonable costs and expenses, including attorneys' fees, that may be incurred by any federalindemnified parties in enforcing the indemnity and other obligations provided for in this Section 5.05.
(e) In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation
(f) This Section 5.05, state, local or foreign governmental agency in connection with which shall survive the production or sale consummation of the Products by Merger at the Supplier (including without limitation any claim or action under any law or regulation relating Effective Time and shall continue for the periods specified herein, is intended to public healthbenefit the Company, the sale of food and drugsSurviving Corporation, and any person or entity referenced in this Section 5.05 or indemnified hereunder each of whom may enforce the safe conduct provisions of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC this Section 5.05 (whether or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant not parties to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7).
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (New Grancare Inc)
Indemnification and Insurance. 11.1 The Supplier agrees to (a) From and after the Effective Time, each of Parent and the Surviving Corporation shall indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, to the fullest extent permitted under Applicable Laws (and all ENBC shall also pay or advance expenses as incurred, to the fullest extent permitted under Applicable Laws, to), each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees, expenses and ENBC Franchisees that purchase Products harmless from and againstdisbursements), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages (including or amounts that are paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related counsel fees) incurred to such Indemnified Party’s service as a director or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any officer of the covenants Company or agreements made its Subsidiaries at or prior to the Effective Time or services performed by such Indemnified Party, at the Supplier request of the Company or its Subsidiaries, as a fiduciary under any Company Benefit Plan or as a director or officer of another Person at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including, but not limited to, in connection with (i) the Transactions and (ii) actions to enforce this Agreement; (c) any claim or action by any consumer provision or any other third party arising out indemnification or advancement right of any Indemnified Party in effect on the production date hereof and copies of which have been made available to Parent prior to the date hereof. In the event of any such claim, action, suit, proceeding or sale investigation, Parent and the Surviving Corporation shall reasonably cooperate in or use reasonable best efforts in the vigorous defense of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that Parent and the Supplier Surviving Corporation shall have no obligation not be liable for any settlement effected without their respective prior written consent. The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, expenses and disbursements, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 6.10.
(b) Without limiting the generality of Section 6.10(a), if any Indemnified Party becomes involved in any actual or threatened claim, action, suit, proceeding or investigation covered by this Section 6.10 after the Effective Time, Parent and the Surviving Corporation shall, to indemnify ENBC the fullest extent permitted by Applicable Laws, advance to such Indemnified Party his or her legal or other expenses (including attorneys’ fees, expenses and disbursements and the cost of any investigation and preparation incurred in connection therewith) within ten business days of receipt by Parent and the Surviving Corporation from the Indemnified Party of a request therefor, subject to such Indemnified Party providing Parent and the Surviving Corporation with an undertaking to reimburse all amounts so advanced in the event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Party is not entitled thereto, but without any requirement for the posting of a bond or any ENBC Subsidiary other terms or ENBC Franchisee conditions other than those expressly set forth herein.
(c) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation, as of the Effective Time, to obtain and fully pay the premium for the non-cancelable extension of (i) the directors’, officers’ and employees’ liability coverage of the Company’s existing directors’, officers’ and employees’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the Indemnified Parties as the Company’s existing policies with respect to any claim actual or action alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director, officer or employee of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or Effective Time (d) any claim or action brought by any federal, state, local or foreign governmental agency including in connection with this Agreement or the production transactions or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of businessactions contemplated hereby), ; provided, however, that in no event shall the Supplier shall have no obligation to indemnify ENBC Company or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent Surviving Corporation expend for such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or policies pursuant to this Agreement; sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance (bthe “Maximum Premium”) (which annual amount the Company represents and warrants is set forth on Section 6.10(c) of the Company Disclosure Letter). If the Company and the Surviving Corporation for any default reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable to the Indemnified Parties as provided in the performance of any Company’s existing policies as of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation ofdate hereof, or conflict withthe Surviving Corporation shall, any patent or trade secret and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of any third party, liability that are at least as favorable to the extent such claim or action is attributable to Indemnified Parties as provided in the use by the Supplier Company’s existing policies as of the Formulationsdate hereof; provided, Procedures however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount in excess of the Maximum Premium; and Specifications or is attributable to provided, further, that if the alterationannual premiums of such insurance coverage exceed the Maximum Premium, handling or misbranding of Products after they have been delivered to ENBCthe Surviving Corporation shall, or any ENBC Subsidiaryand Parent shall cause the Surviving Corporation to, ENBC Franchisee or Authorized Recipient; or obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium.
(d) If Parent or the Surviving Corporation or any claim of their respective successors or action by assigns shall (i) consolidate with or merge into any third party alleging infringement other corporation or violation entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) 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 or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.10.
(e) The provisions of this Section 6.10 are (i) expressly intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or conflict withher heirs and his or her legal representatives and (ii) in addition to, and not in substitution for, any trademarksother rights to indemnification or contribution that any such Person may have by contract or otherwise. The provisions of this Section 6.10 shall survive the consummation of the Merger.
(f) Parent agrees that all rights to indemnification, trade names advancement of expenses and exculpation from liabilities for acts or trade dress, omissions occurring at or prior to the extent such claim Effective Time (including any matters arising in connection with the Transactions) now existing in favor of the current or action is attributable former directors or officers of the Company or any of its Subsidiaries as provided in any agreement in effect on the date hereof and made available to Parent prior to the use date hereof between the Company or any of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchiseesits Subsidiaries, on the one hand, and any current or former director or officer of the SupplierCompany or any Company Subsidiary, on the other hand, may will be required to enter into indemnity agreements assumed by the Surviving Corporation without further action, as of the Effective Time, and will survive the Merger and will continue in full force and effect in accordance with Authorized Recipientstheir terms. ENBC The Charter and the Supplier agree Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company Charter and the Company Bylaws, which provisions shall not be amended or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights of such director or officer, unless such modification is required by Applicable Laws during such period.
(ag) Notwithstanding anything herein to the contrary, in the case of Sections 6.10(c) and 6.10(f) in the event ENBC that any claim for indemnification is asserted or any ENBC Subsidiary made on or ENBC Franchisee is obligated prior to make indemnity payments under any such agreement resulting from any the sixth anniversary of the matters described Effective Time, all rights to indemnification in clauses (a) through (d), inclusive, respect of Section 11.1 hereof, such claim shall continue until the Supplier shall indemnify ENBC or final disposition of such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofclaim.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (TPC Group Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for(a) WMATA shall indemnify, defend, and hold ENBC harmless the District, and all ENBC Subsidiaries its directors, officers, agents, and ENBC Franchisees that purchase Products harmless employees, from and againstagainst all claims, all expensessuits, judgments, actions, losses, damages, liabilities, costs and expenses of every name and description, including but not limited to reasonable attorney 's fees and costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action brought by any consumer or any other third party arising out of, resulting from, or in connection with any negligent act or omission by WMATA, its contractors, subcontractors, agents, or employees, or anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, relating to any CIP work covered by this Agreement.
(b) WMATA shall either be sufficiently self-insured or carry insurance to cover the risks for WMATA, its employees, agents, contractors and subcontractors, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable related to any CIP work covered by this Agreement. WMATA shall require all commercial insurance policies obtained by WMATA to satisfy its obligations under this section to list the District, and its respective officers, agents, and employees as Additional Insureds. WMATA certifies that as of the production Effective Date of this Agreement, all commercial insurance and self-insurance lists the District and its respective officers, agents and employees as Additional Insureds. WMATA shall not remove the District, or sale its respective officers, agents, and employees as Additional Insureds for any self-insurance without the written consent of the Products by District.
(c) In the Supplier (including event WMATA receives notice from an insurer that any claims insurance policy is going to be, or actions for personal injury and has been, subject to cancellation, nonrenewal, or material adverse changes to the insurance contract, WMATA shall provide the District with prompt notice. WMATA shall provide 30-days advance written notice to the District of any products liability claims cancellation or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect material adverse change to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or self-insurance.
(d) For commercial insurance, WMATA shall provide Certificates of Insurance listing the District, and its respective officers, agents, and employees, as Additional Insureds. WMATA shall provide a self-insurance letter indicating the extent of WMATA’s self-insurance.
(e) In lieu of carrying insurance for its agents, contractors or subcontractors, WMATA may require all its agents, contractors or subcontractors who perform any claim CIP work or action brought by activity of any federaltype to carry insurance sufficient to cover the risks for all damage to persons and property due to CIP work under this Agreement. However, state, local or foreign governmental agency in connection with the production or sale such insurance does not relieve WMATA of the Products by burden of being self-insured and/or carrying insurance to cover the Supplier (including without limitation any claim or action under any law or regulation relating to public healthactions of its employees. WMATA shall require of its agents, the sale of food and drugscontractors, and the safe conduct of business), provided, however, subcontractors that the Supplier District, and its respective officers, agents, and employees, are identified as Additional Insureds on all such insurance policies obtained in lieu of WMATA providing such insurance for its agents, contractors or subcontractors, and WMATA shall have no obligation to indemnify ENBC or require that its agents, contractors, and subcontractors provide Certificates of Insurance listing the District and its respective officers, agents, and employees as Additional Insureds for any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationsinsurance policies.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel feesf) incurred or suffered by the Supplier resulting from: (a) any breach Payment of any representation funds by or warranty made by ENBC in or pursuant to this Agreement; (b) any default in through the performance of District shall not waive any of the covenants rights of the District contained in this section nor release WMATA from any responsibilities or agreements made by ENBC duties contained in this Agreement; .
(cg) any claim or action by any consumer, governmental agency or any other third party, including any claim The obligations of infringement or violation of, or conflict with, any patent or trade secret this section shall survive the termination of any third party, to this Agreement for the extent such claim or action is attributable to the use by the Supplier life of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate assets purchased with the other party in the defense of any claim funding provided or action by the other party hereunderfor 20 years after termination, whichever is longer.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Dedicated Funding Grant Agreement
Indemnification and Insurance. 11.1 The Supplier agrees to To the fullest extent permissible under Maryland law, the Company shall indemnify ENBC and hold harmless Executive for and against any and all ENBC Subsidiaries losses, expenses (including those incurred in enforcing Executive’s rights under this Section 10), damages, liabilities, judgments, fines, penalties, taxes, amounts paid or payable in settlement (including interest), assessments and ENBC Franchisees forall other charges paid or payable in connection with any threatened, pending or completed action, suit, proceeding or other dispute resolution mechanism, whether civil, criminal, administrative, arbitrative, investigative or other, or any inquiry, hearing or investigation that may reasonably be expected to lead to any of the foregoing, which Executive may incur or suffer or for which Executive may be liable by reason of or arising out of any event, act or occurrence relating to Executive’s employment with the Company or any of its Affiliates or any other entity for which Executive provided services at the direction or request of the Company or any of its Affiliates (“Indemnified Losses”), and hold ENBC at Executive’s election, shall defend Executive in connection with any of the foregoing. The Company shall at all times maintain reasonable and customary policies of insurance by reputable insurers under which Executive is a HB: 0000-0000-0000.9 primary beneficiary covering all ENBC Subsidiaries Indemnified Losses, and ENBC Franchisees that purchase Products harmless from shall, upon Executive’s written request, provide copies of such insurance policies and againstendorsements and certificates evidencing such coverage. The Company shall advance to Executive Indemnified Losses as, all expenses, losses, costs, deficiencies, liabilities when and damages (including related counsel fees) to the extent actually incurred or suffered by them resulting from: (a) Executive. In connection with any breach request for such advance of Executive’s Indemnified Losses, Executive shall execute and deliver to the Company an undertaking to repay any representation amounts paid, advanced, or warranty made reimbursed by the Supplier in or pursuant Company for such Indemnified Losses to this Agreement; (b) any default in the performance extent that it is ultimately determined, following the final disposition of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, howeversuch claim, that the Supplier Executive is not entitled to indemnification hereunder. The foregoing indemnification, insurance and adverse obligations shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect not apply to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use brought by the Supplier of the Formulations, Procedures and Specifications; Company or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action its Affiliates to enforce its rights under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Employment Agreement (CorEnergy Infrastructure Trust, Inc.)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach Parent and Merger Sub agree that all rights to advancement of any representation or warranty made expenses, indemnification and exculpation by the Supplier Company now existing in favor of each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company or the Company Subsidiary (each an “Indemnified Party”) as provided in the Company’s certificate of incorporation or bylaws, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date of this Agreement; , accurate and complete copies of which have been provided or made available to Parent, shall survive the Merger. From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each Indemnified Party than are set forth in the certificate of incorporation and bylaws of the Company as in effect on the date of this Agreement.
(b) For six (6) years after the Effective Time, to the full extent permitted under applicable Law, Parent and the Surviving Corporation (the “Indemnifying Parties”) shall, jointly and severally, indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments or fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in respect of this Agreement and the Transactions), whether asserted or claimed prior to, at or after the Effective Time, and shall advance each Indemnified Party within twenty (20) Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor for any default reasonable legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments or fines as such expenses are incurred, but subject to the performance Indemnifying Parties’ receipt of an unsecured undertaking, to the extent required by the FBCA, by or on behalf of the Indemnified Party to repay such expenses if it is ultimately determined that such Indemnified Party is not entitled to indemnification hereunder; provided that nothing herein shall impair any rights to indemnification of any of the covenants or agreements made by the Supplier Indemnified Party referred to in this Agreement; clause (a) above.
(c) any claim Parent and the Surviving Corporation shall, jointly and severally, cause the individuals who have served as officers and directors of the Company prior to the Effective Time who are then covered by the directors’ and officers’ liability insurance policy currently maintained by the Company (a correct and complete copy of which has been delivered or action made available to Parent) (the “D&O Insurance”), to be covered under a directors’ and officers’ liability insurance policy on terms and conditions no less advantageous to such individuals than the Company’s existing directors’ and officers’ liability insurance policy for a period of not less than six (6) years after the Effective Time, but only to the extent related to actions or omissions of such officers and directors at or prior to the Effective Time (including in respect of this Agreement and the Transactions) in their capacities as such, whether asserted or claimed prior to, at or after the Effective Time; provided, that in no event shall Parent or the Surviving Corporation be required to expend more than an amount per year equal to 125% of the current annual premiums paid by any consumer the Company for such insurance (the “Maximum Amount”) to maintain or procure insurance coverage pursuant hereto; provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Parent and the Surviving Corporation shall procure and maintain for such six-year (6) period as much coverage as is available for the Maximum Amount. Parent shall have the right to cause coverage to be extended under the D&O Insurance by obtaining a six (6) year “tail” policy on terms and conditions no less advantageous to such former directors or officers than the D&O Insurance, and such “tail” policy shall satisfy the provisions of this Section 6.9(c).
(d) Notwithstanding any other third party arising out provision of this Section 6.9, Parent, Merger Sub, the production or sale of the Products by the Supplier (including any claims or actions for personal injury Company and any products liability claims or action), provided, however, that the Supplier their Affiliates shall have no obligation to indemnify ENBC indemnify, defend or hold harmless or advance expenses and exculpate any ENBC Subsidiary person for matters for which a director or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier officer of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees Company has agreed to indemnify the Supplier forCompany, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this the Employment Separation and General Release Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 The Supplier agrees (a) Parent and Merger Sub agree that all rights to indemnify ENBC advancement of expenses, indemnification and all ENBC Subsidiaries exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer or director of the Company (each an “Indemnified Party”) for such Person’s acts or omissions occurring prior to the Effective Time in his or her capacity as an officer or director of the Company as provided in the Company Charter Documents as in effect on the date of this Agreement, or pursuant to any other indemnification agreements identified on Section 6.7(a) of the Company Disclosure Letter in effect on the date of this Agreement, shall survive the Merger from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs. From and ENBC Franchisees forafter the Effective Time until the sixth anniversary of the Effective Time, Parent shall cause the Surviving Corporation to indemnify, defend and hold harmless, and hold ENBC advance expenses to, the Indemnified Parties with respect to (x) all acts or omissions by them in their capacities as such at any time at or prior to the Effective Time or (y) any costs or expenses (including reasonable and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstdocumented attorneys’ fees), all expensesjudgments, fines, losses, costsclaims, deficiencies, damages and liabilities and damages (including related counsel fees) incurred by such Indemnified Party in his or suffered by them resulting from: (a) any breach of any representation her capacity as a current or warranty made by the Supplier in former officer or pursuant to this Agreement; (b) any default in the performance of any director of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency Company in connection with the production any claim, action, suit, proceeding or sale of the Products by the Supplier (including without limitation any claim investigation, whether civil, criminal, administrative or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partyinvestigative, to the extent such claim claim, action, suit, proceeding or action is attributable investigation arises out of or pertains to the use Merger, this Agreement or any of the other Transactions, in either case, to the fullest extent permitted by the Supplier Company Charter Documents, any other indemnification agreements identified on Section 6.7(a) of the FormulationsCompany Disclosure Letter in effect on the date of this Agreement, Procedures or applicable Law. From and Specifications after the Effective Time until the sixth anniversary of the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the certificate of incorporation and bylaws of the Surviving Corporation to so contain, provisions no less favorable in any material respect regarding indemnification, advancement of expenses and exculpation of the Indemnified Parties than are set forth in the Company Charter Documents as in effect on the date of this Agreement.
(b) Parent shall either (i) cause to be maintained in effect, for a period of six years after the Effective Time, the directors’ and officers’ liability insurance policy that is in effect on the date of this Agreement (the “D&O Insurance”) covering acts or is attributable omissions occurring at or prior to the alteration, handling or misbranding Effective Time with respect to those Persons who are covered by the D&O Insurance as of Products after they have been delivered to ENBCthe Effective Time, or (ii) obtain, in consultation with the Company, a prepaid (or “tail”) directors’ and officers’ liability insurance policy covering acts or omissions occurring at or prior to the Effective Time for a period of six years after the Effective Time, with respect to those Persons who are covered by the D&O Insurance as of the Effective Time on terms with respect to such coverage and amounts no less favorable to such indemnified Persons than those of the D&O Insurance; provided, that (A) Parent may substitute one or more policies of a reputable and financially sound insurance company for the D&O Insurance, so long as such substitute policies have at least the same coverage and amounts and contain terms and conditions which are no less advantageous to the Persons currently covered by the D&O Insurance; (B) Parent shall not be required to pay any ENBC Subsidiaryannual premium for the D&O Insurance or any substitutes with respect thereto in excess of 250% of the amount paid by the Company for coverage for the period of 12 months most recently commenced prior to the date of this Agreement (such amount paid by the Company, ENBC Franchisee the “Maximum Amount”); and (C) if the premium for the D&O Insurance or Authorized Recipientany substitutes therefor exceeds 250% of the Maximum Amount, Parent shall purchase a substitute policy with the greatest coverage available for 250% of the Maximum Amount. Parent shall provide, or cause to be provided, a copy of such D&O Insurance to each current director and officer of the Company.
(c) If 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 (dii) transfers all or substantially all of its properties and assets to any claim Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or action by any third party alleging infringement or violation ofthe Surviving Corporation, or conflict withas the case may be, any trademarks, trade names or trade dress, to shall assume the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used obligations set forth in accordance with ENBC's instructions pursuant to this Section 6.7.
11.3 (d) The parties agree that each party shall have the exclusive right to control the defense (obligations of Parent and the right Surviving Corporation under this Section 6.7 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to establish adversely affect any Indemnified Party to whom this Section 6.7 applies without the terms written consent of any settlement) of any claim or action by any such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.7 applies shall be third party that could result in such party having an indemnification obligation under beneficiaries of this Section 11.1 or 6.7, each of whom may enforce the provisions of this Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder6.7).
11.4 ENBC (e) The provisions of this Section 6.7 are intended to be in addition to the rights otherwise available to the current and the Supplier acknowledge former officers and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any directors of the matters described in clauses (a) through (d)Company by Law, inclusivecharter, of Section 11.1 hereofstatute, the Supplier shall indemnify ENBC bylaw or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofagreement.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees to 13.1 POZEN shall defend, indemnify ENBC and hold harmless DESITIN, its Affiliates and its and their officers, directors, employees, agents and contractors (“DESITIN Parties”) from and against any and all ENBC Subsidiaries and ENBC Franchisees forclaims, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstactions, all expensesdemands, losses, costsdamages, deficiencies, liabilities costs and damages reasonable expenses (including related counsel reasonable legal and expert fees) incurred made or suffered brought by them resulting from: Third Parties (“Claims”) arising from or in connection with:
(a) any the breach of any representation or warranty made the warranties given by the Supplier in or pursuant to POZEN under this Agreement; , or
(b) any default the negligence of POZEN Parties (as defined below) in the performance of any research, development, marketing, distribution, sale or use of the covenants Product before the Effective Date both in or agreements made by outside the Supplier in this Agreement; Territory, or
(c) any claim the negligence of POZEN Parties in the research, development, marketing, distribution, sale or action by any consumer or any other third party arising out use of the production Product following the Effective Date outside the Territory, provided that, in each case, such Claims do not arise from the negligence or sale willful default of the Products DESITIN Parties.
13.2 DESITIN shall defend, indemnify and hold harmless POZEN, its Affiliates and its and their officers, directors, employees, agents and contractors (the “POZEN Parties”) from and against any and all Claims arising from or in connection with:
(a) the development, marketing, distribution, sale or use of the Product in the Territory after the Effective Date;
(b) the negligence by DESITIN Parties in relation to the development, marketing, distribution, sale or use of the Product in the Territory after the Effective Date; or
(c) the breach of the warranties given by DESITIN under this Agreement, provided that, in each case, such Claims do not arise from the negligence or willful default of the POZEN Parties. For the avoidance of doubt DESITIN shall in no event be liable for any claims arising from or in connection with the infringement of Third Party Rights, particularly patents, caused by the Supplier (including manufacture or composition of the Product in accordance with the terms of this Agreement.
13.3 Each Party shall promptly provide the other Party with copies of all papers and official documents received in respect of any claims or actions for personal injury Claims and shall cooperate as reasonably requested by the other Party in the defense of any products liability claims or action)Claims. The Party which is indemnifying the other Party hereunder shall have control of, and discretion in, the handling of the defense and/or settlement of any such Claim, including, without limitation, the selection of defense counsel; provided, however, that the Supplier shall have no indemnified Party may take any appropriate action necessary to preserve or avoid prejudice to its interests, or the interests of the indemnifying Party, in the event that (1) notice to the indemnifying Party cannot be given in sufficient time for such Party to take action, or (2) the indemnifying Party, after prompt notice and inquiry from the indemnified Party, fails to acknowledge its obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect the indemnified Party under this Clause. An indemnified Party will also be entitled to any claim or action to the extent such claim or action is attributable to the alterationparticipate in, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthbut not control, the sale defense of food such Claim and drugs, and the safe conduct to employ counsel of business), its choice for such purpose; provided, however, that such employment will be at the Supplier indemnitee’s own expense unless (i) the employment thereof has been specifically authorized by the indemnifying Party in writing, or (ii) the indemnifying Party has failed to assume the defense and employ counsel in accordance with this Clause 13.3, in which case the indemnified Party will control the defense.
13.4 Each Party shall have no obligation maintain, at its own cost, comprehensive product liability insurance and general commercial liability insurance adequate to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee cover their respective obligations under this Agreement in such amount as the Parties customarily maintain with respect to its other products and which is reasonable and customary in the pharmaceutical industry in their respective territories for companies of comparable size and activities. Each Party shall maintain such insurance policy for not less than *** years following the expiry or termination of this Agreement. A certificate of insurance and any claim or action other documentation necessary to prove compliance with this provision will be provided to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationsother Party upon request.
11.2 ENBC agrees to indemnify the Supplier for13.5 TO THE FULL EXTENT PERMITTED BY LAW, and to hold the Supplier harmless from and againstAPART FROM THE FOREGOING WARRANTIES AND INDEMNITY OR SUCH WARRANTIES OR INDEMNITY AS MAY BE CONTAINED WITHIN THE MANUFACTURING AGREEMENT, all expensesNEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES, lossesREPRESENTATIONS, costsAND LIABILITIES, deficienciesWHETHER EXPRESS OR IMPLIED, liabilities and damages ARISING FROM CONTRACT OR TORT (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumerEXCEPT FRAUD), governmental agency or any other third partyIMPOSED BY STATUTE OR OTHERWISE, including any claim of infringement or violation ofRELATING TO THE PRODUCTS AND/OR ANY LICENSED TECHNOLOGY, or conflict withINCLUDING ANY WARRANTIES AS TO MERCHANTABILITY, any patent or trade secret of any third partyFITNESS FOR PURPOSE, to the extent such claim or action is attributable to the use by the Supplier of the FormulationsCORRESPONDENCE WITH DESCRIPTION, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7OR NON-INFRINGEMENT.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection13.6 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2INCIDENTAL OR SPECIAL DAMAGES, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunderINCLUDING ANY LOSS OF PROFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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Indemnification and Insurance. 11.1 The Supplier agrees (a) From and after the Effective Time, solely to the extent that Partnership or Partnership GP or any applicable Subsidiary thereof would be permitted to indemnify ENBC an Indemnified Person immediately prior to the Effective Time, Parent and the Surviving Entity jointly and severally agree to (i) indemnify and hold harmless all Indemnified Persons to the fullest extent permitted under applicable Law against any reasonable costs or expenses (including reasonable attorneys’ fees and all ENBC Subsidiaries other reasonable costs, expenses and ENBC Franchisees forobligations (including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and hold ENBC binding costs, as well as telecommunications, postage and all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and againstcourier charges) paid or incurred in connection with investigating, all expensesdefending, 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, costsclaims, deficienciesdamages or liabilities, liabilities penalties and damages amounts paid in settlement (including related counsel fees) incurred all interest, assessments and other charges paid or suffered by them resulting from: (a) any breach payable in connection with or in respect of any representation thereof) in connection with any actual or warranty made threatened Proceeding, and, upon receipt by Parent of an undertaking by or on behalf of the Supplier 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, provide advancement of expenses with respect to each of the foregoing to, and (ii) honor the provisions regarding elimination of liability of officers and directors, indemnification of officers and directors and advancement of expenses contained in the Organizational Documents of Partnership and Partnership GP immediately prior to the Effective Time, and ensure that the Organizational Documents of the Partnership and Partnership GP or any of their respective successors or assigns, if applicable, shall, for a period of six years following the 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 Partnership and Partnership GP than as set forth in such Organizational Documents as of the Execution Date. Any right of an Indemnified Person pursuant to this Agreement; Section 6.7(a) shall not be amended, repealed, terminated or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein, and shall be enforceable by such Indemnified Person and their respective heirs and Representatives against Parent and Partnership GP and their respective successors and assigns.
(b) any default Parent shall, prior to the Effective Time, purchase a “tail policy” under Partnership’s existing directors’ and officers’ liability insurance policies, on terms and conditions providing substantially equivalent benefits as Partnership’s existing directors’ and officers’ liability insurance policies, to provide coverage for a period of six (6) years from the Effective time 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 Indemnified Persons in the performance of any of the covenants or agreements made by the Supplier in this Agreement; their capacity as such.
(c) The rights of any claim or action by any consumer or Indemnified Person under this Section 6.7 shall be in addition to any other third party arising out rights such Indemnified Person may have under the Organizational Documents of Partnership and Partnership GP, any indemnification agreements, or the DLLCA and DRULPA. The provisions of this Section 6.7 shall survive the consummation of the production or sale transactions contemplated by this Agreement for a period of six (6) years and are expressly intended to benefit each of the Products by the Supplier (including any claims or actions for personal injury Indemnified Persons and any products liability claims or action), their respective heirs and Representatives; provided, however, that in the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to event that any claim or action claims for indemnification or advancement set forth in this Section 6.7 are asserted or made within such six (6)-year period, all rights to the extent indemnification and advancement in respect of any such claim or action is attributable to the alterationclaims shall continue until disposition of all such claims. If Parent and/or Partnership GP, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary of their respective successors or ENBC Franchisee assigns (i) consolidates with or is attributable to the use by the Supplier of the Formulationsmerges into any other Person, Procedures and Specifications; or (dii) any claim transfers or action brought by any federal, state, local conveys all or foreign governmental agency in connection with the production substantially all of their businesses or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect assets to any claim or action to the extent other Person, then, in each such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third partycase, to the extent such claim or action is attributable to necessary, proper provision shall be made so that the use by successors and assigns of Parent and/or Partnership GP shall assume the Supplier obligations of the Formulations, Procedures Parent and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used Partnership GP set forth in accordance with ENBC's instructions pursuant to this Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (PBF Logistics LP)
Indemnification and Insurance. 11.1 The Supplier (a) Licensee hereby agrees to indemnify ENBC Licensor and all ENBC Subsidiaries undertakes to defend and ENBC Franchisees forhold Licensor, its affiliates and their respective officers, directors, agents, and hold ENBC and all ENBC Subsidiaries and ENBC Franchisees that purchase Products employees, harmless from and against, and/or pay and reimburse such persons for, any and all expensesclaims, suits, losses, costsdamages and/or expenses, deficienciesincluding but not limited to attorneys' fees and disbursements (collectively, liabilities and damages (including related counsel fees) incurred "Losses"), that arise out of or suffered relate to the Licensed Trademarks or Licensed Products sold or distributed by them resulting from: (a) any breach of any representation it on or warranty made by after the Supplier in date hereof, except to the extent that such Losses are based on, arise out of, relate to, or pursuant to this Agreement; (b) any default in the performance of any involve claims that Licensee's use of the covenants Licensed Trademarks infringes a third parties proprietary rights and except for Losses resulting from or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production gross negligence of Licensor or sale a breach of the Products by the Supplier (including any claims Licensor's obligations or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specificationswarranties specifically contained herein.
11.2 ENBC (b) Licensor hereby agrees to indemnify the Supplier forLicensee and undertakes to defend and hold Licensee, its affiliates and to hold the Supplier their respective officers, directors, agents and employees, harmless from and against, all expensesand or pay and reimburse such persons for, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred any Losses that arise out of or suffered relate to Licensed Products sold or distributed prior to the date of this Agreement or which are not sold or distributed by or on behalf of Licensee or that arise out of or relate to or involve claims that Licensee's use of the Supplier resulting from: (a) any Licensed Trademarks infringes a third party's proprietary rights or that result from or relate to the gross negligence of Licensor or the breach of any representation Licensor's obligations or warranty made by ENBC in warranties specifically contained herein except Losses resulting from or pursuant to this Agreement; (b) any default in the performance of any arising out of the covenants gross negligence of Licensee or agreements made by ENBC in this Agreement; a breach of Licensee's obligations or warranties contained herein.
(c) any claim or action by any consumerLicensee and Licensor shall each maintain at its own expense through purchased insurance throughout the Term and for a period four (4) years thereafter, governmental agency or any other third partycomprehensive general liability insurance, including any claim product liability insurance, in a minimum amount of infringement or violation ofTwo Million Dollars ($2,000,000) combined single limit for each single occurrence, or conflict withfor bodily injury and property damage. During the term hereof, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC named as an additional insured on such policies. Either party shall, upon request, provide the other a certificate of such insurance from the insurance carrier which sets forth the scope of coverage and containing endorsements (i) providing the limits of liability stated above without any provision for material deductibles or self-insured retentions, and further provides that the Supplier's comprehensive general liability policies may not be materially changed or canceled without at least (30) days prior written notice. Prior to any such cancellation, Licensee or Licensor, as the case may be, shall provide the other with a certificate of insurance evidencing that a new insurance policy with the same coverage and terms described above will be in place prior to such termination. Upon reasonable request either party shall deliver to the other evidence in form and substance reasonably satisfactory to the requesting party, of the maintenance and renewal of the required insurance, including without limitation, renewal certificates and copies of those portions of policies, riders and endorsements pertaining to this Agreement.
(including d) Licensee agrees to be responsible for returns of Licensed Products which occur after the date of this Agreement except for Interlude Xmas Set (1995) and Hope Xmas Set (1995) for which Licensor shall be responsible. Licensee shall not be responsible for returns of any products liability) other than the Licensed Products (but only to the "Supplier CGLextent provided for in the preceding sentence).
Appears in 1 contract
Samples: Trademark License and Supply Agreement (Stephan Co)
Indemnification and Insurance. 11.1 The Supplier agrees to (a) From and after the Effective Time, each of Parent and the Surviving Corporation shall indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, to the fullest extent permitted under Applicable Laws (and all ENBC shall also pay or advance expenses as incurred, to the fullest extent permitted under Applicable Laws, to), each Person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees, expenses and ENBC Franchisees that purchase Products harmless from and againstdisbursements), all expensesjudgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages (including or amounts that are paid in settlement incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related counsel fees) incurred to such Indemnified Party’s service as a director or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any officer of the covenants Company or agreements made its Subsidiaries at or prior to the Effective Time or services performed by such Indemnified Party, at the Supplier request of the Company or its Subsidiaries, as a fiduciary under any Company Benefit Plan or as a director or officer of another Person at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including, but not limited to, in connection with (i) the Transactions and (ii) actions to enforce this Agreement; (c) any claim or action by any consumer provision or any other third party arising out indemnification or advancement right of any Indemnified Party in effect on the production date hereof. In the event of any such claim, action, suit, proceeding or sale investigation, Parent and the Surviving Corporation shall reasonably cooperate in or use reasonable best efforts in the vigorous defense of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), such matter; provided, however, that Parent and the Supplier Surviving Corporation shall have no obligation not be liable for any settlement effected without their respective prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). The Surviving Corporation shall pay all reasonable expenses, including reasonable attorneys’ fees, expenses and disbursements, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 6.10.
(b) Without limiting the generality of Section 6.10(a), if any Indemnified Party becomes involved in any actual or threatened claim, action, suit, proceeding or investigation covered by this Section 6.10 after the Effective Time, Parent and the Surviving Corporation shall, to indemnify ENBC the fullest extent permitted by Applicable Laws, advance to such Indemnified Party his or her legal or other expenses (including attorneys’ fees, expenses and disbursements and the cost of any investigation and preparation incurred in connection therewith) within ten business days of receipt by Parent and the Surviving Corporation from the Indemnified Party of a request therefor, subject to such Indemnified Party providing Parent and the Surviving Corporation with an undertaking to reimburse all amounts so advanced in the event of a non-appealable determination of a court of competent jurisdiction that such Indemnified Party is not entitled thereto, but without any requirement for the posting of a bond or any ENBC Subsidiary other terms or ENBC Franchisee conditions other than those expressly set forth herein.
(c) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation, as of the Effective Time, to obtain and fully pay the premium for the non-cancelable extension of (i) the directors’, officers’ and employees’ liability coverage of the Company’s existing directors’, officers’ and employees’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the Indemnified Parties as the Company’s existing policies with respect to any claim actual or action alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director, officer or employee of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or Effective Time (d) any claim or action brought by any federal, state, local or foreign governmental agency including in connection with this Agreement or the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of businessTransactions), ; provided, however, that in no event shall the Supplier shall have no obligation to indemnify ENBC Company or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent Surviving Corporation expend for such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or policies pursuant to this Agreement; sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance (bthe “Maximum Premium”) (which annual amount the Company represents and warrants is set forth on Section 6.10(c) of the Company Disclosure Letter). If the Company and the Surviving Corporation for any default reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are at least as favorable to the Indemnified Parties as provided in the performance of any Company’s existing policies as of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation ofdate hereof, or conflict withthe Surviving Corporation shall, any patent or trade secret and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance from financially sound and reputable carriers for such six-year period with terms, conditions, retentions and limits of any third party, liability that are at least as favorable to the extent such claim or action is attributable to Indemnified Parties as provided in the use by the Supplier Company’s existing policies as of the Formulationsdate hereof; provided, Procedures however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount in excess of the Maximum Premium; and Specifications or is attributable to provided, further, that if the alterationannual premiums of such insurance coverage exceed the Maximum Premium, handling or misbranding of Products after they have been delivered to ENBCthe Surviving Corporation shall, or any ENBC Subsidiaryand Parent shall cause the Surviving Corporation to, ENBC Franchisee or Authorized Recipient; or obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium.
(d) If Parent or the Surviving Corporation or any claim of their respective successors or action by assigns shall (i) consolidate with or merge into any third party alleging infringement other corporation or violation entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) 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 or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.10.
(e) The provisions of this Section 6.10 are (i) expressly intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or conflict withher heirs and his or her legal representatives and (ii) in addition to, and not in substitution for, any trademarksother rights to indemnification or contribution that any such Person may have by contract or otherwise. The provisions of this Section 6.10 shall survive the consummation of the Merger.
(f) Parent agrees that all rights to indemnification, trade names advancement of expenses and exculpation from liabilities for acts or trade dress, omissions occurring at or prior to the extent such claim Effective Time (including any matters arising in connection with the Transactions) now existing in favor of the current or action is attributable former directors or officers of the Company or any of its Subsidiaries as provided in any agreement in effect on the date hereof (and made available to Parent prior to the use date hereof) between the Company or any of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchiseesits Subsidiaries, on the one hand, and any current or former director or officer of the SupplierCompany or any of its Subsidiaries, on the other hand, may will be required to enter into indemnity agreements assumed by the Surviving Corporation without further action, as of the Effective Time, and will survive the Merger and will continue in full force and effect in accordance with Authorized Recipientstheir terms. ENBC The Charter and the Supplier agree By-Laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of former or present directors and officers than are presently set forth in the Company Charter and the Company By-Laws, which provisions shall not be amended or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights of such director or officer, unless such modification is required by Applicable Laws during such period.
(ag) Notwithstanding anything herein to the contrary, in the case of Sections 6.10(c) and 6.10(f) in the event ENBC that any claim for indemnification is asserted or any ENBC Subsidiary made on or ENBC Franchisee is obligated prior to make indemnity payments under any such agreement resulting from any the sixth anniversary of the matters described Effective Time, all rights to indemnification in clauses (a) through (d), inclusive, respect of Section 11.1 hereof, such claim shall continue until the Supplier shall indemnify ENBC or final disposition of such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofclaim.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees (a) Immediately after the Effective Time, the certificate of incorporation and by-laws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification that are at least as favorable to the present and former officers and directors of Axxxxx and its Subsidiaries (each an “Indemnified Party”) as those contained in the Axxxxx Charter and the Axxxxx By-laws as 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, immediately prior to the Effective Time, were directors, officers, employees or agents of Axxxxx, unless such modification is required by law. ADC shall cause the Surviving Corporation to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC and harmless each Indemnified Party against all ENBC Subsidiaries and ENBC Franchisees that purchase Products harmless from and against, all expensesclaims, losses, costsliabilities, deficienciesdamages, liabilities judgments, inquiries, fines and damages (reasonable fees, costs and expenses, including related counsel fees) attorneys’ fees and disbursements incurred in connection with any claim, action, suit, proceeding or suffered by them resulting from: (a) any breach of any representation investigation, whether civil, criminal, administrative or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party investigative, arising out of actions taken by them in their capacity as officers or directors at or prior to the production Effective Time (including in connection with this Agreement and the transactions contemplated hereby), or sale taken by them at the request of Axxxxx, ADC, the Surviving Corporation or any of their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under Applicable Law for a period of six years after the Effective Time. Each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation within ten Business Days of receipt of the Products by Surviving Corporation from the Supplier (including any claims or actions for personal injury and any products liability claims or action), Indemnified Party of a 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 ADC nor the Supplier Surviving Corporation shall have no obligation to indemnify ENBC settle, compromise or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action consent to the extent entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim in which indemnification could be sought by such claim Indemnified Party hereunder, without the consent of such Indemnified Party, which consent shall not be unreasonably withheld, conditioned or action is attributable delayed, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim.
(b) Prior to the alterationEffective Time, handling or misbranding ADC shall purchase a directors’ and officers’ and fiduciary liability insurance policy providing coverage for a period of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable at least six years following the Effective Time (i) for persons who were officers and/or directors of Axxxxx xxxxx to the use by Effective Time and (ii) for persons who were officers and/or directors of ADC prior to the Supplier Effective Time and who are not officers or directors of ADC immediately following the FormulationsEffective Time, Procedures and Specifications; in each case for claims arising after the Effective Time from facts or (d) any claim events which occurred at or action brought by any federal, state, local or foreign governmental agency in connection with prior to the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugsEffective Time, and in each case, which policy shall provide for at least the safe conduct same coverage and amounts containing terms and conditions that are not less advantageous than the respective policies of business)ADC and Axxxxx, as in place at the Effective Time; provided, however, that in no event will ADC be required to expend in any year an amount in excess of 250% of the Supplier shall have no obligation annual aggregate premiums currently paid by ADC or Axxxxx, as applicable, for 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, ADC will cause to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action be maintained the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and SpecificationsMaximum Premium.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency In the event that ADC or any of its successors or assigns (i) consolidates with or merges into any other third partyPerson 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, including any claim then, and in each such case, proper provision will be made so that the successors and assigns of infringement or violation of, or conflict with, any patent or trade secret of any third party, to ADC assume the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or obligations set forth in this Section 6.4.
(d) any claim or action by any third party alleging infringement or violation The provisions of this Section 6.4 are intended for the benefit of, and will be enforceable by, each Indemnified Party and his or conflict withher heirs and representatives, and are in addition to, and not in substitution for, any trademarks, trade names other rights to indemnification or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree contribution that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC Indemnified Party may have had by contract or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereofotherwise.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
Appears in 1 contract
Samples: Merger Agreement (Andrew Corp)
Indemnification and Insurance. 11.1 (a) The Supplier agrees articles of incorporation and by-laws of the Surviving Corporation shall contain provisions with respect to indemnification substantially to the same effect as those set forth in the articles of incorporation and the by-laws of the Company on the date hereof, which provisions shall not be amended, modified or otherwise repealed for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder as of the Effective Time of individuals who at the Effective Time were directors, officers, employees or agents of the Company, unless such modification is required after the Effective Time by law.
(b) Parent shall cause the Surviving Corporation, to the fullest extent permitted under applicable law or under the Surviving Corporation's articles of incorporation or by-laws or any indemnification agreement in effect as of the date hereof, to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless, each present and all ENBC former director, officer or employee of the Company or any of its Subsidiaries and ENBC Franchisees that purchase Products harmless from and against(collectively, all expensesthe "INDEMNIFIED PARTIES") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities and damages amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, (including related counsel feesx) incurred or suffered by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of or pertaining to the production transactions contemplated by this Agreement or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee y) otherwise with respect to any claim acts or action omissions occurring at or prior to the extent such claim or action is attributable Effective Time ("Indemnification Liabilities"), to the alteration, handling same extent as provided in the Company's articles of incorporation or misbranding of Products after they have been delivered to ENBC by-laws or any ENBC Subsidiary applicable contract or ENBC Franchisee 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 is attributable investigation (whether arising before or after the Effective Time) and subject to the use by specific terms of any indemnification contract, (i) after the Supplier of the Formulations, Procedures and Specifications; or (d) any claim or action brought by any federal, state, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including without limitation any claim or action under any law or regulation relating to public healthEffective Time, the sale of food Surviving Corporation shall assume and drugsdirect all the defense thereof, including settlement, and the safe conduct of business), provided, however, that the Supplier Indemnified Parties shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any such matter. An Indemnified Party shall have a right to participate in (but not control) the defense of any such matter with its own counsel and at its own expense. Notwithstanding the right of the Surviving Corporation to assume and control the defense of such litigation, claim or action by proceeding, such Indemnified Party shall have the other party hereunder.
11.4 ENBC right to employ separate counsel and to participate in the Supplier acknowledge and agree that ENBCdefense of such litigation, ENBC Subsidiaries and ENBC Franchisees, on the one handclaim or proceeding, and the SupplierSurviving Corporation shall bear the reasonable fees, costs and expenses of such separate counsel and shall pay such fees, costs and expenses promptly after receipt of an invoice from such Indemnified Party if (i) the use of counsel chosen by the Surviving Corporation to represent such Indemnified Party would present such counsel with a conflict of interest, (ii) the defendants in, or targets of, any such litigation, claim or proceeding shall have been advised by counsel that there may be legal defenses available to it or to other Indemnified Parties which are different from or in addition to those available to the Surviving Corporation, or (iii) the Surviving Corporation shall not have employed counsel satisfactory to such Indemnified Party, in the exercise of the Indemnified Party's reasonable judgment, to represent such Indemnified Party within a reasonable time after notice of the institution of such litigation, claim or proceeding. The Surviving Corporation shall not settle any such matter unless (i) the Indemnified Party gives prior written consent, which shall not be unreasonably withheld or delayed, or (ii) the terms of the settlement provide that the Indemnified Party shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC Indemnified Party and the Supplier agree that settlement discharges all rights against Indemnified Party with respect to such matter. In no event shall the Surviving Corporation be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification under this Section 6.06(b), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent and the Surviving Corporation (abut the failure so to notify shall not relieve the Surviving Corporation from any liability which it may have under this Section 6.06(b) except to the extent such failure materially prejudices such Surviving Corporation). The Indemnified Parties as a group will be represented by a single law firm (plus no more than one local counsel in any jurisdiction) with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. Notwithstanding anything to the contrary, in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing 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 Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLdisposition of any and all such claims and
Appears in 1 contract
Indemnification and Insurance. 11.1 The Supplier agrees Company shall, to the maximum extent permitted by law, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC the LLCP Representative, each LLCP representative on the Operating Committee, LLCP and all ENBC Subsidiaries LLCP's employees, general and ENBC Franchisees that purchase Products limited partners, principals, agents, attorneys, accountants, representatives and affiliates (collectively, the "LLCP PARTIES") harmless from all costs, expenses, liabilities, claims, damages and againstlosses, including without limitation, attorneys' fees and the cost of any investigation and preparation incurred in connection therewith (collectively, "LIABILITIES AND COSTS") arising out of or in any way related to the fact that any LLCP Party is or was a director or other agent of the Company or any subsidiary of the Company, served on the Operating Committee or, while a director or other agent, is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise. Upon request by any LLCP Party, the Company shall advance (within 10 business days of such request) any and all expenses, lossesincluding without limitation, costs, deficiencies, liabilities any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all attorneys' fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier in or pursuant may be entitled to this Agreementindemnification hereunder; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, howeverthat, if and to the extent that the Supplier shall have no obligation a court of competent jurisdiction finally determines that such LLCP Party is not permitted to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be indemnified with respect to such matter under applicable law, the Company shall be entitled to be reimbursement of any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or expenses so advanced. The Company shall also indemnify each LLCP Party from and against any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party's rights under this SECTION 1.5, or under applicable law or the Company's Articles of Incorporation or Bylaws now or hereafter in effect relating to indemnification, or for recovery under directors' and officers' liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If for any reason the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company's reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC otherwise have at law or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any other agreement, including without limitation, the Purchase Agreement, and such agreement resulting from obligations shall extend, upon the same terms, to all LLCP Parties. This SECTION 1.5 shall survive indefinitely the termination of this Agreement. At any time that an LLCP Representative is serving on the Board, the Company shall maintain in force and effect one or more insurance policies providing at least $10,000,000 in insurance coverage for director liability, including coverage for claims under federal and state securities laws. The Company shall procure within 30 days of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 date hereof, and (b) shall thereafter maintain in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described effect, one or more insurance policies providing at least $10,000,000 in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operationscoverage for director liability, including premises coverage for claims under federal and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLstate securities laws.
Appears in 1 contract
Samples: Investor Rights Agreement (Levine Leichtman Capital Partners Ii Lp)
Indemnification and Insurance. 11.1 The Supplier agrees Company shall, to the maximum extent permitted by Applicable Laws, indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees for, and hold ENBC harmless the LLCP Representative, LLCP and LLCP’s employees, general and limited partners, principals, agents, attorneys, accountants, representatives and affiliates (collectively, the “LLCP Parties”) from all ENBC Subsidiaries costs, expenses, liabilities, claims, damages and ENBC Franchisees losses, including attorneys’ fees and the cost of any investigation and preparation incurred in connection therewith (collectively, “Liabilities and Costs”), arising out of or in any way related to the fact that purchase Products harmless from any LLCP Party is or was a director or other agent of the Company or any Subsidiary of the Company, or, while a director or other agent, is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, including without limitation, liabilities and againstcosts incurred in connection with any challenge of the provisions of this Section 1.5. Upon request by any LLCP Party, the Company shall advance (within ten (10) Business Days of such request) any and all expenses, losses, costs, deficiencies, liabilities including any and damages (including related counsel fees) incurred or suffered by them resulting from: (a) any breach all attorneys’ fees and the cost of any representation investigation and preparation incurred in connection with any matter for which such LLCP Party is or warranty made by the Supplier in or pursuant may be entitled to this Agreementindemnification hereunder; (b) any default in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) any claim or action by any consumer or any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that, if and to the extent that the Supplier shall have no obligation a court of competent jurisdiction finally determines that such LLCP Party is not permitted to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee be indemnified with respect to such matter under Applicable Laws, the Company shall be entitled to reimbursement of any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or expenses so advanced. The Company shall also indemnify each LLCP Party from and against any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications; or (d) all Liabilities and Costs incurred in connection with any claim or action brought to enforce such LLCP Party’s rights under this Section 1.5, or under Applicable Laws or the Company’s Articles of Incorporation or Bylaws now or hereafter in effect relating to indemnification, or for recovery under directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether such LLCP Party is ultimately determined to be entitled to such indemnification or insurance recovery, as the case may be. If for any reason the foregoing indemnification is not available for any reason or is not sufficient to indemnify and hold the LLCP Parties harmless from all such Liabilities and Costs, then the Company shall contribute to the amount of all such Liabilities and Costs paid or payable by any federal, state, local or foreign governmental agency LLCP Party in connection with such proportion as is appropriate to reflect not only the production or sale of the Products relative benefits received by the Supplier (including without limitation any claim or action under any law or regulation relating to public health, the sale of food and drugs, and the safe conduct of business), provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC FranchiseesCompany, on the one hand, and the SupplierLLCP, on the other hand, but also the relative fault of each, as well as any other equitable considerations. The Company’s reimbursement, indemnity and contribution obligations shall be in addition to any liability the Company may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC otherwise have at law or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d)other agreement, inclusive, of Section 11.1 hereofincluding without limitation, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee forSecurities Purchase Agreement, and hold ENBC such obligations shall extend, upon the same terms, to all LLCP Parties. This Section 1.5 shall survive indefinitely the termination of this Agreement. At any time that an LLCP Representative is serving on the Board of Directors, the Company shall maintain in force and such ENBC Subsidiary effect one or ENBC Franchisee harmless from more insurance policies providing at least $15,000,000 in insurance coverage for director liability, including coverage for claims under federal and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 hereof.
11.5 state securities laws. The Supplier Company represents and warrants to LLCP that it carries: (a) currently maintains in effect one or more insurance policies of worker's compensation and employer's liability providing at least $15,000,000 in insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operationscoverage for director liability, including premises coverage for claims arising under federal and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGLstate securities laws.
Appears in 1 contract
Samples: Investor Rights Agreement (Levine Leichtman Capital Partners IV, L.P.)
Indemnification and Insurance. 11.1 The Supplier agrees to indemnify ENBC and all ENBC Subsidiaries and ENBC Franchisees forprovisions of this Section 5.12 are intended for the benefit of the parties indemnified herein, and shall be enforceable by such parties.
(a) The By-Laws of IVI and the By-Laws of the Surviving Corporation shall not be amended, repealed or otherwise modified, for a period of six years from the Effective Date in any manner that would adversely affect the rights thereunder of individuals who immediately prior to the Effective Date were directors, officers, employees or agents of IVI or Checkmate, as the case may be, unless such modification is required by Law.
(b) Newco shall, to the fullest extent permitted under applicable Law, indemnify and hold ENBC harmless, each present and all ENBC Subsidiaries former director, officer, employee, fiduciary and ENBC Franchisees that purchase Products harmless from agent of each of IVI and againstCheckmate or any of their subsidiaries (collectively, all expensesthe "Indemnified Parties") against any costs or expenses (including attorneys' fees), judgments, fines, losses, costsclaims, deficienciesdamages, liabilities Liabilities and damages amounts paid in settlement in connection with any Litigation, claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring at or prior to the Effective Date (including related counsel fees) incurred or suffered including, without limitation, the transactions contemplated by them resulting from: (a) any breach of any representation or warranty made by the Supplier in or pursuant to this Agreement) for a period of six years after the Effective Date; (b) any default PROVIDED, HOWEVER, that in the performance of any of the covenants or agreements made by the Supplier in this Agreement; (c) event that any claim or action by claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any consumer such claim or claims shall continue until the disposition of any other third party arising out of the production or sale of the Products by the Supplier (including any claims or actions for personal injury and any products liability claims or action), provided, however, that the Supplier shall have no obligation all such claims. The Indemnified Parties as a group may retain only one law firm to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee represent them with respect to any claim single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or action more Indemnified Parties. Any counsel retained by the Indemnified Parties shall be reasonably satisfactory to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC Newco and Newco shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld).
(c) If Newco or any ENBC Subsidiary successors or ENBC Franchisee assigns of Newco shall consolidate with or is attributable merge into any other person and shall not be the continuing or surviving person of such consolation or merger or shall transfer all or substantially all of its properties to any person, then and in each case, proper provision shall be made, so that such successors and assigns shall assume the use by the Supplier obligations of the Formulations, Procedures and Specifications; or Section 5.12(b).
(d) any claim or action brought by any federalNewco shall obtain directors' and officers' insurance for the directors and officers of Newco, stateCheckmate and IVI, local or foreign governmental agency in connection with the production or sale of the Products by the Supplier (including including, without limitation any claim or action under any law or regulation relating to public healthlimitation, the sale of food and drugspolicy limits at least as high as, and the safe conduct of business)risks protected against at least as expansive as, provided, however, that the Supplier shall have no obligation to indemnify ENBC or any ENBC Subsidiary or ENBC Franchisee with respect to any claim or action Checkmate's just prior to the extent such claim or action is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC or any ENBC Subsidiary or ENBC Franchisee or is attributable to the use by the Supplier of the Formulations, Procedures and Specifications.
11.2 ENBC agrees to indemnify the Supplier for, and to hold the Supplier harmless from and against, all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel fees) incurred or suffered by the Supplier resulting from: (a) any breach of any representation or warranty made by ENBC in or pursuant to this Agreement; (b) any default in the performance of any of the covenants or agreements made by ENBC in this Agreement; (c) any claim or action by any consumer, governmental agency or any other third party, including any claim of infringement or violation of, or conflict with, any patent or trade secret of any third party, to the extent such claim or action is attributable to the use by the Supplier of the Formulations, Procedures and Specifications or is attributable to the alteration, handling or misbranding of Products after they have been delivered to ENBC, or any ENBC Subsidiary, ENBC Franchisee or Authorized Recipient; or (d) any claim or action by any third party alleging infringement or violation of, or conflict with, any trademarks, trade names or trade dress, to the extent such claim or action is attributable to the use of trademarks, trade names or trade dress used in accordance with ENBC's instructions pursuant to Section 6.7.
11.3 The parties agree that each party shall have the exclusive right to control the defense (and the right to establish the terms of any settlement) of any claim or action by any third party that could result in such party having an indemnification obligation under Section 11.1 or Section 11.2 with counsel of such party's selection, that each party will promptly give the other party written notice of any claim or action of which it becomes aware that could result in such other party having an indemnification obligation under Section 11.1 or Section 11.2, and that each party will fully cooperate with the other party in the defense of any claim or action by the other party hereunder.
11.4 ENBC and the Supplier acknowledge and agree that ENBC, ENBC Subsidiaries and ENBC Franchisees, on the one hand, and the Supplier, on the other hand, may be required to enter into indemnity agreements with Authorized Recipients. ENBC and the Supplier agree that (a) in the event ENBC or any ENBC Subsidiary or ENBC Franchisee is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.1 hereof, the Supplier shall indemnify ENBC or such ENBC Subsidiary or ENBC Franchisee for, and hold ENBC and such ENBC Subsidiary or ENBC Franchisee harmless from and against, such payment in accordance with Section 11.1 hereof, and (b) in the event the Supplier is obligated to make indemnity payments under any such agreement resulting from any of the matters described in clauses (a) through (d), inclusive, of Section 11.2 hereof, ENBC shall indemnify the Supplier, and hold the Supplier harmless from and against, such payment in accordance with Section 11.2 date hereof.
11.5 The Supplier represents and warrants that it carries: (a) policies of worker's compensation and employer's liability insurance that comply with all state and federal laws, and (b) policies of comprehensive general liability insurance covering the Supplier's premises and operations, including premises and operations coverage, owner's and contractor's protective coverage, products and completed operations coverage, full blanket contractual coverage and broad form property damage coverage, with a combined single limit of $9,000,000 naming ENBC as an additional insured and containing endorsements (i) providing that the Supplier's comprehensive general liability coverage (including products liability) (the "Supplier CGL
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